Impossibility (BGB)

Impossibility is a concept of the German law of obligations . The German Civil Code (BGB) does not define the legal term impossibility, rather it presupposes that it is known ( Section 275 BGB).

A distinction is made between the (objective) impossibility and the (subjective) inability. Objective impossibility exists if the service cannot be provided by anyone for factual or legal reasons. Failure to comply with the time of performance impossibility occurs then, when the service can not be provided or the creditor has become meaningless. On the other hand, there is subjective inability if the service can be provided by a third party , but not by the debtor . Legally, the subsequent inability is equated with the impossibility.

According to the legal principle impossibilium nulla est obligatio , the impossibility also expires the obligation to perform . This means that the debtor no longer has to fulfill his obligation, for example the provision of ownership by handing over a television that has been sold but stolen from the seller after the contract was concluded. If the debtor is released from his obligation to perform, then in return he generally has no claim to the consideration ( Section 326 (1) BGB). In this respect, the principle applies: "Without performance, no consideration". If a debtor is released from fulfillment due to impossibility, the contract still exists. In practice, this can mean in particular that the exempted debtor can meet further contractual obligations such as liability for damages .

Function and regulatory context

The fact that the impossible cannot be demanded ( impossibilium nulla obligatio ) initially appears to be a matter of course, as an objection that hinders or destroys the law .

Whether performance is impossible for the debtor depends on the nature of the performance debt. In particular, a sharp distinction is made between whether there is a piece debt or a generic debt . As far as already occurs impossibility at a piece of debt by the sinking of a concrete thing can at a generic fault impossibility only after concretisation present debt. The specification in accordance with Section 243, Paragraph 2 of the German Civil Code (BGB) means that the debtor has “done what was necessary for the performance of such a thing” (concretized generic debt) and the generic debt has become a piece debt. When this is the case in detail depends on the type of guilt. In the case of a generic debt, in which the object of performance is only determined on the basis of generic features, impossibility only occurs when all elements of the class are destroyed. For example, anyone who owes the transfer of ownership of a particular car is freed from his guilt by its destruction ; if, on the other hand, he owes any car of this type, he will not be released, since he can deliver from the class; not until all vehicles of this type were destroyed.

If performance cannot be fulfilled by the debtor, i.e. if he continues to owe the performance, this is referred to as a performance risk ; with the impossibility, the risk of performance passes to the obligee. The impossibility relates to unilateral and reciprocal contracts ; this also with regard to the performance obligations that are not reciprocal.

This set of questions has to be distinguished from the question of what should happen to the claim for consideration ( risk of consideration ) if the service does not have to be provided.

Types of impossibility

Objective and subjective impossibility

A distinction is made between who can not provide the service . Both are regulated in Section 275 (1) BGB.

Of objective impossibility is when no one can provide the service around the world (for example, burn a particular painting).
Of subjective impossibility (even failure ) is mentioned, if the performance can be but provided though a third party just by the debtor under any circumstances (for example, one remained unknown thief stole the sold image, making it over the hills - the Thief could provide the painting, but not the debtor).
In the case of monetary debts , however, the prevailing opinion is that insolvency never leads to inability. Rather , one has to have money here. This can be justified with the existence of an insolvency order ; the legislature obviously did not want to allow an appeal to the impossibility of a monetary debt.

Initial and subsequent impossibility

A distinction is made between the point in time at which the impediment to performance occurred.

Initial impossibility (event that causes the impossibility of the service to be provided occurs before the contract is concluded , regulated in § 311a BGB).
Subsequent impossibility (event that causes the impossibility to provide the service occurs after the contract is concluded , then Section 275 BGB).

The legal consequence in all of the aforementioned cases is that the debtor is already released from his obligation by law.

Factual or personal impossibility

The new German law of obligations also allows the debtor to plead, in accordance with Section 275 (2) BGB, that a service can only be provided with disproportionate effort (so-called factual or practical impossibility), or that the provision of a personal service (so-called. personal or moral impossibility ) is unreasonable, § 275 Abs. 3 BGB. As with the actual impossibility, the debtor is released from the performance, but only if he invokes the impossibility, it is an objection .

An example of the disproportionate effort is often cited when the seller sells a ring, which then goes down with a ship and sinks to the seabed. The seller then no longer needs to procure the ring. Whether this is disproportionate, however, depends on the circumstances in the individual case. Rescue is not disproportionate, for example, if a company is currently being commissioned with the rescue (and it does not turn out to be unusually difficult).

A typical example of the unreasonableness of performance in person is the opera singer, who cannot be expected to perceive her commitment because her child falls ill on the evening of the performance.

See also: qualitative impossibility

Legal history

The modernization of the law of obligations also brought about a reform of the cases of impossibility of performance. According to § 306 BGB a. F. contracts aimed at initial, objective, impossible performances were void. In the cases of subsequent objective and subjective impossibility, the debtor was released from performance, § 275 BGB a. F. The case of the initial, subjective impossibility was not regulated by law.

Individual evidence

↑ Hans Brox , Wolf-Dietrich Walker : General law of obligations . 39th edition. CH Beck , Munich 2015, ISBN 978-3-406-64653-9 , pp. 87 .
↑ Hans Brox , Wolf-Dietrich Walker : General law of obligations . 39th edition. CH Beck , Munich 2015, ISBN 978-3-406-64653-9 , pp. 88 .
↑ Lorenz in BeckOK BGB, as of March 1, 2011, § 276 BGB margin no. 39
↑ Lorenz in BeckOK BGB, as of March 1, 2011, § 275 BGB Rn. 53
↑ BT print. 14/6040 p. 130.
^ Dieter Medicus : Civil law. a presentation for exam preparation according to the requirements. 18th edition. Heymann, Cologne a. a. 1999, ISBN 3-452-24107-6 , Rn. 280.

[1] Hans Brox , Wolf-Dietrich Walker : General law of obligations . 39th edition. CH Beck , Munich 2015, ISBN 978-3-406-64653-9 , pp. 87 .

[:0-2] Hans Brox , Wolf-Dietrich Walker : General law of obligations . 39th edition. CH Beck , Munich 2015, ISBN 978-3-406-64653-9 , pp. 88 .

[3] Lorenz in BeckOK BGB, as of March 1, 2011, § 276 BGB margin no. 39

[4] Lorenz in BeckOK BGB, as of March 1, 2011, § 275 BGB Rn. 53

[5] BT print. 14/6040 p. 130.

[6] Dieter Medicus : Civil law. a presentation for exam preparation according to the requirements. 18th edition. Heymann, Cologne a. a. 1999, ISBN 3-452-24107-6 , Rn. 280.