Prohibited exercise of rights

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In German civil law, inadmissible exercise of the law refers to the unlawful assertion of a right that the creditor has either acquired through behavior in violation of the law, contract or otherwise in bad faith or intends to enforce such behavior.

The inadmissible exercise of rights is derived from § 242 BGB . In particular, this includes cases of abuse of the law by way of Dolo agit, qui petit, quod statim redditurus est (performance request , although there is an immediate reimbursement obligation) and Venire contra factum proprium (inconsistency with one's own previous behavior).

Offense

The BGB recognizes two main groups of inadmissible exercise of rights: on the one hand the general clause "good faith" (§ 242 BGB), on the other hand from the special provision of the ban on harassment ( § 226 BGB). A harassment according to § 226 BGB or an inadmissible exercise of rights according to § 242 BGB exists only if the assertion of a right pursues no other purpose than the harm to another and in the exercise of the right there is no self-interest worthy of protection or if the right is only asserted, in order to achieve another, non-contractual or unfair goal. Through the use of the word "only" has federal court makes it clear that this is an exhaustive list ( Enumerationsprinzip is) not to other groups of cases spread can be. This includes the “dolo agit defense”.

Kurt Schellhammer lists the individual cases to be subsumed under this abusive exercise of rights , with which he explains the hardly definable term. This includes, for example, the loss of the right to a contractual penalty if the contracting party was induced to breach the contract by the other contracting party , or the offsetting of a bank against its customer with a claim that it has not acquired in the usual way. Under labor law, the employees hired as freelancers at their own request should be mentioned, who cannot later claim that they are employees . Abuse of the law thus occasionally also represents contradicting behavior ("venire contra factum proprium"), which systematically includes forfeiture .

However, exercising a right of withdrawal on the grounds that the goods were cheaper to purchase elsewhere does not constitute an inadmissible exercise of the law because, according to the Federal Court of Justice, the motivation for exercising the right of withdrawal is irrelevant.

Legal consequences

The apparent abuse of law is not legally protected, so that a legally destructive objection to the asserted right arises from § 242 BGB . It means that the unlawful claim that has already arisen cannot be enforced. The ban on harassment is therefore intended to help ward off impending injustice .

See also

Individual evidence

  1. ↑ RGZ 68, 424, 425.
  2. ↑ BGHZ 29, 113, 117 f.
  3. ^ BGH, judgment of May 22, 1989 , Az. II ZR 206/88; Full text = BGHZ 107, 296, 310 f.
  4. ^ BGH, ruling of July 9, 2007 , Az. II ZR 95/06; Full text.
  5. ↑ a b Kurt Schellhammer, Law of Obligations according to Claim Basis , 2008, p. 605 ff.
  6. ↑ BAG, judgment of December 11, 1996 ( Memento of the original of July 18, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 5 AZR 855/95; Full text = NJW 1997, 2617, 2618. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  7. ↑ BGH, judgment of March 16, 2016, Az. VIII ZR 146/15
  8. ^ LG Koblenz, 03/18/2009 - 10 O 250/08, NJW 2010, 159.