Venire contra factum proprium
Venire contra factum proprium ( lat. "Offense against their own past behavior," simplified "inconsistent behavior") referred to in the German law of obligations a particular case of infringement of the principle of good faith , which in § 242 German Civil Code (BGB) enshrined is.
content
Basically, the legal system allows contradicting behavior. The parties are at liberty if they change their legal views in the context of obligations entered into and even invoke the nullity of their own declaration. Something else applies, however, if you have created an act of trust for the other part, on which the other party has relied or was allowed to trust, or if special circumstances make the unintended exercise of the law appear unfaithful. According to the legal principle venire contra factum proprium , in these cases there is an inadmissible exercise of the law because the contradicting behavior is then an abuse of law. If the other part makes asset-forming dispositions trusting the fulfillment of a contract, or if a legal regulation has been interpreted in a certain sense by the provider for a longer period and he turns away because he does not want to feel bound by it, his trust is regularly worthy of protection be. To a fault , the Supreme Court is not from here. Nowadays, this objection is also referred to as the objection of unclean hands , especially in competition law.
A special case of the venire contra factum proprium is the forfeiture , according to which someone cannot assert a right if the person entitled has not asserted it for a long time and the person obliged has or was allowed to prepare for it according to the entire behavior of the person entitled would no longer be asserted in the future either. Here, too, there is an inadmissible exercise of the law due to “contradicting behavior”, but this is due to inaction.
use cases
If, for example, the person entitled has expressly prevented the other parties involved from complying with the required form of the transaction, this can constitute an abuse of law if he nevertheless later invokes the ineffectiveness of the form.
It can also be illegal if the husband, who has consented to an artificial insemination of his wife with donor sperm, i.e. a heterologous insemination , later wants to evade the maintenance obligation with reference to the lack of (biological) paternity.
Another area of application is the exemption from liability of the injuring party in particularly dangerous sports such as boxing: it would contradict the principle of good faith if the injured party - who has exposed himself to the risk of injury by participating - tries to damage the other off, which he has consciously accepted (self-endangerment) and he himself could have come into the position of the perpetrator. An analogous exclusion of liability on the basis of venire contra factum proprium applies to sporting fighting games not only in the event of damage caused by the opponent's behavior according to the rules, but also for minor rule violations, e.g. B. through typical sports misjudgments. The principle of implied action is of particular importance , because with consent the exemption from liability results from the principle of volenti non fit iniuria , which is also applicable to criminal law.
In the area of labor law , a company can not insist that called temporary workers was present when lender and the borrower had tried together, the actual inclusion of an employee in the operation of the borrower by a certificate - Work contract disguise. This also applies if the borrower is in possession of the permit under the Temporary Employment Act .
The forfeiture in which the other part no longer had to reckon with the fact that a claim would still be asserted due to the passage of time and the behavior of the person entitled, is a special sub-case of self-contradicting trading.
international law
The Venire contra factum proprium is also important in international law and is mostly referred to as Estoppel . Accordingly, a state may not deviate from its previous practice to the detriment of another state that justifiably relied on the other's previous declaration or state practice .
literature
- Hans Walter Dette : Venire contra factum proprium nulli conceditur. For the specification of a legal proverb. Dissertation at Johannes Gutenberg University Mainz . Duncker & Humblot, Berlin 1985, ISBN 3428059026
- Michael Griesbeck: Venire contra factum proprium - attempt of a systematic and theoretical recording. Jur. Diss. Würzburg 1978.
- Lisa Isola: Venire contra factum proprium - nulli conceditur et contra: the foundations of a proverbial legal principle, presented on the basis of the legal Brocardica aurea Jur. Diss. Vienna 2014.
- Roland Kreibich: The principle of good faith in tax law. Legal dogmatic investigation of its external references and internal structure, exemplarily deepened by the principles of forfeiture and the venire contra factum proprium. Heidelberg 1992 (also Diss. Augsburg 1991).
- Erwin Riezler : Venire contra factum proprium - studies in Roman, English and German civil law. Duncker & Humblot, Leipzig 1912.
- Reinhard Singer : The prohibition of contradicting behavior. Munich 1993 (Jur. Diss. Munich 1992).
- Arndt Teichmann : Venire contra factum proprium - a partial aspect of abusive behavior. In: JA 1985, 497-502.
- Hans Josef Wieling : Venire contra factum proprium and fault against oneself. AcP 176 (1976), 334–355.
