Reinterpretation (law)

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Through the reinterpretation (also called conversion ) according to § 140 BGB , a void legal transaction that meets the requirements of a valid legal transaction is reinterpreted into this valid legal transaction in civil law , if it can be assumed that if knowledge of the nullity of this other transaction would be intended.

An example can be cited: Extraordinary termination is not permitted, but would be permissible as ordinary termination. Then the extraordinary termination can be reinterpreted as an ordinary termination.

Standard purpose

§ 140 BGB serves to realize private autonomy and is thus systematically related to the similarly directed §§ 133 , 139 , 157 BGB.

"The aim of the provision is to achieve the economic success sought by the parties even if the means they have chosen for this is inadmissible, but another, legally feasible path is available that leads to approximately the same economic result".

This through the "enforcement of the alleged party will (...), limited by the established true party will".

Concept and delimitations

The legal dogmatic classification of the reinterpretation is controversial. Sometimes it is seen as a special case of partial invalidity, sometimes as a special rule of interpretation, but predominantly as an independent legal institution.

Generally from a "priority of interpretation" and also from a priority of the regulation for the case of partial invalidity in § 139 BGB.

Competitions

Section 150 , Section 117 (2) of the German Civil Code (sham deal) are preceding special regulations. Sections 550 sentence 1, 2101 , 2301 BGB are also namedas such.

requirements

No actual party will opposing the reinterpretation

An actual party will takes precedence over the reinterpretation.

If the parties acted with knowledge of the ineffectiveness, it is assumed that they did not want any reinterpretation. Simply having to know the ineffectiveness is not enough.

The parties can positively make a regulation in the event that their legal transaction is ineffective. You can agree that your legal transaction is not to be reinterpreted in the event of ineffectiveness or you can determine which legal transaction your legal transaction is to be reinterpreted into in the event of ineffectiveness ( conversion clause ).

Void (or ineffective) legal transaction

§ 140 BGB requires a legal transaction . Section 140 of the German Civil Code (BGB) is applied accordingly to procedural acts.

All types of legal transactions are recorded: unilateral (e.g. a termination ) or multilateral (e.g. a contract); Disposition or obligation transactions; Business of death and business between the living etc.

If there is no legal transaction due to a dissent , § 140 BGB does not apply.

In German civil law dogmatics, a distinction is made between initial ineffectiveness (nullity) and other ineffectiveness. § 140 BGB speaks only of "nullity". But what is meant is any form of ineffectiveness. (For the sake of simplicity, the following mostly only speaks of nullity.)

A contestable, but not contested legal transaction is not subject to § 140 BGB. Just as little a pending ineffective, still curable legal transaction.

§ 140 BGB presupposes total invalidity, not mere partial invalidity. A partially invalid legal transaction, which is otherwise effective according to § 139 BGB, cannot be reinterpreted.

No violation of the norm purpose of the ineffectiveness norm

The reinterpretation of a void legal transaction into another legal transaction must not contradict the purpose of the nullity standard. If the legal system does not disapprove of the means but (also) of success, a reinterpretation is out of the question.

It is true that Section 140 of the German Civil Code (BGB) does not focus on the type of the grounds for invalidity. In the case of ineffective, illegal ( § 134 BGB) or immoral legal transactions ( § 138 BGB), however, the respective purpose of the standard must be asked.

Effective, congruent replacement business

A reinterpretation is not possible if the replacement transaction is also ineffective. It is possible if the replacement business is less flawed, e.g. B. instead of void is only contestable.

The requirements for the replacement business are formulated differently. According to a formula also used in case law, it is important that the legal transaction to be regarded as valid was already fully contained in the void transaction as part of it. According to the congruence formula, it is sufficient that the void business meets the requirements of the replacement business. According to both views / formulations, no elements of a substitute transaction may be faked in the course of the reinterpretation.

Representative is, for example, the requirement that the void legal transaction must have all the essential characteristics of the other, permissible legal transaction to be reinterpreted with (approximately) the same, but not more extensive, effects as the void.

It follows from the congruence requirement and the importance of the hypothetical party will that the effects of the substitute transaction must not go beyond those of the actually intended transaction.

  • Example: The reinterpretation of a contestation into a termination is possible (effect only ex nunc , no compensation according to § 122 BGB), but not the other way around.

Hypothetical party will

§ 140 BGB asks about the presumed (hypothetical) party will. A real party will comes first. The hypothetical will of the party takes precedence over the objectively reasonable. The parties must not be patronized. However, a hypothetical will to allow the substitute transaction to apply is to be assumed regularly if the same economic success is achieved as a result of the void legal transaction; In general, it can be assumed that the parties, as reasonably thinking people, were concerned with the economic success they are striving for when concluding the contract.

In the case of mutual contracts, a reinterpretation is not excluded from the outset because the service / consideration relationship is interfered with. (Exceptionally) the reinterpretation can include a change in the balance between performance and consideration, but it can also include a reduction in the consideration of the disadvantaged party in order to maintain the balance.

The relevant point in time for determining the hypothetical will of the party is the point in time at which the legal transaction is carried out, not the point in time at which the reinterpretation takes place.

Procedural matters

  • by law

The reinterpretation is not designed as an objection or objection , but applies “by law” (“by law”). One also speaks of the reinterpretation “ex officio”. Similar to the expression K “onversion”, this is criticized for incorrectly creating the impression that the reinterpretation is a judicial arrangement of the law. That is true. The reinterpretation also has "design elements."

  • Burden of presentation and proof

Anyone who asserts the legal consequences of a reinterpreted legal transaction bears the burden of presentation and proof for the requirement of a reinterpretation.

Case groups

General

An extensive case law has developed to reinterpret this, which can best be read in the comments. One should warn against a schematic takeover: it depends on the hypothetical party will in the individual case.

Employment Law

  • Extraordinary (immediate) (employer) dismissal:

An extraordinary (immediate) termination can be converted into an ordinary (timely) termination. However, according to case law, this only occurs if the employer was able to recognize this (from the circumstances). The case law in the meantime that a reinterpretation is "to be asserted" contradicted § 140 BGB and is only found sporadically. According to general conversion principles, a reinterpretation is only permitted if the ordinary termination is effective, i.e. H. If necessary, it is socially justified within the meaning of Section 1 KSchG, the necessary approvals (also) for ordinary dismissal ( Section 85 SGB ​​IX, Section 9 MuSchG, Section 18 BErzGG or according to Section 103 BetrVG) are available and, if there is a works council, this according to Section 102 BetrVG (as a precaution also) was heard about an intended ordinary termination.

. For violations of protected by § 77 para 3 WCA collective bargaining is the relation to the collective agreement competing company agreement - even if the employer is not bound by collective bargaining - ineffective. However, analogous to § 140 BGB, it can be reinterpreted as a uniform contractual regulation (overall commitment or bundled contract offers) if "there are special factual circumstances from which the employees could reasonably conclude that [! Sic] the employer goes beyond the obligations under the works constitution wanted to commit to a certain service. "The starting point for the reinterpretation is decisive whether the employer's declaration results in the hypothetical will to be contractually bound to the employees benefiting from the regulation in the event of the ineffectiveness of the works constitution regulation. Such reinterpretations may only take place in exceptional cases, since otherwise the protective purpose of Section 77 (3) BetrVG would come to nothing.

Administrative law

  • Administrative act:

It used to be the prevailing opinion that § 140 BGB also applies correspondingly to administrative acts. Section 47 of the Administrative Procedure Act (“reinterpretation of a faulty administrative act”) now contains an independent regulation that deviates from Section 140 of the BGB.

  • public law contracts:

Section 140 BGB continues to apply accordingly to contracts under public law.

Procedural law

Section 140 of the German Civil Code (BGB) is also applicable (analogously) in the procedural rules, "if their requirements are met, the reinterpretation corresponds to the relevant party will and there is no conflicting interests of the opponent worthy of protection".

literature

  • Training literature:
  • Jan songs ; Daniel Berneith: The reinterpretation according to § 140 BGB , JuS 2015, 1063-1067
  • Comments (selection):
  • Erman / Arnold, BGB, 14th edition 2014, § 140 BGB
  • Jauernig / Mansel, BGB, 16th edition 2015, Beck, Munich, § 140 BGB
  • Munich Commentary / Busche, 7th edition 2015, § 140 BGB
  • Nassall in: Herberger / Martinek / Rüßmann u. a., jurisPK-BGB, 7th edition 2014, § 140 BGB
  • Staudinger / Roth, BGB, new 2015, § 140 BGB

Individual evidence

  1. Nassall in: Herberger / Martinek / Rüßmann u. a., jurisPK-BGB, 7th edition 2014, § 140 BGB marg. 1; Staudinger / Roth, BGB, new 2015, § 140 Rn. 1
  2. Jauernig / Mansel, BGB, 16th ed. 2015, Beck, Munich, § 140 Rn. 1
  3. Jauernig / Mansel, BGB, 16th ed. 2015, Beck, Munich, § 140 Rn. 4 mwN
  4. HK- BGB / Dörner, § 140, Rn. 5.
  5. Erman / Arnold, BGB, 14th edition 2014, § 140 BGB margin no. 15th
  6. BGH, judgment of March 19, 2004 - V ZR 224/03 - juris Rn. 11 mwN = MDR 2004, 867
  7. Staudinger / Roth, BGB, new 2015, § 140 Rn. 27
  8. Staudinger / Roth, BGB, new 2015, § 140 Rn. 34
  9. BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 21-, BAGE 82, 89-101 = NZA 1996, 948.
  10. BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 19 f. -, BAGE 82, 89-101 = NZA 1996, 948.
  11. BAG, judgment of 23 August 1989 - 5 AZR 391/88 -, juris, 1st principle.
  12. BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 29-, BAGE 82, 89-101 = NZA 1996, 948.
  13. BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 32-, BAGE 82, 89-101 = NZA 1996, 948.
  14. Munich Commentary / Busche, 7th edition 2015, § 140 BGB margin no. 11
  15. BGH, decision of June 21, 2000 - XII ZB 93/00 - juris Rn. 3 mwN = NJW-RR 2001, 279