Associated contract

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Under a related contract which sees German contract law a contract between a consumer and an entrepreneur about the delivery of goods or the provision of other services , with a loan agreement is connected. The two contracts are linked in accordance with Section 358 (3) sentence 1 of the German Civil Code (BGB) if the loan is used in whole or in part to finance the other contract and both contracts form an economic unit.

Linked contracts are often sales or work contracts ; but z. B. A travel contract can also be combined with a loan contract.

The existence of connected contracts has special legal consequences according to §§ 358, 359 BGB such as an objection and revocation procedure. In addition, in accordance with Section 358 (5) BGB, the consumer must be informed about the legal consequences of Section 358 (1) and (2) BGB in an extended instruction .

The purpose of the legal link between the two contracts is to protect the consumer from the risks that arise from the separation of an economically uniform contract into a cash transaction and an associated loan contract.

Typically, related contracts are found in three-person relationships. The regulations of §§ 358, 359 BGB also apply to mere two-person relationships, i.e. to cases in which the entrepreneur and the lender are identical.

Legal basis

Sections 358, 359 of the German Civil Code (BGB) were introduced with the Law of Obligations Modernization Act of January 1, 2002 and replace the provisions in Section 9 of the Consumer Credit Act (VerbrKrG), Section 4 of the Distance Selling Act (FernAbsG) and Section 6 of the Part-Time Right of Residence Act . The term “related business” in Section 9 VerbrKrG and the term “financed contracts” in Section 4 FernAbsG have thus been incorporated into the uniform terminology of “related contracts”.

Section 358 of the BGB serves to implement Directive 97/7 / EC (Distance Selling Directive) , FinDL-RL 6 VII and Part-Time UseR-RL 7. Section 359 serves to implement Art. 11 II 1 VerbrKrRL 1986.

By Art. 1 of the Act of 24 July 2010, § 358 2 and 3 BGB para. 2 sentence lifted. An exclusion of the right of withdrawal was previously regulated in these regulations .

By Art. 1 of the Act of 27 July 2011, § 358 para. 1 to 5 have been amended so that instead of the consumer loan agreement i. S. d. 491 BGB each loan agreement concluded with a consumer is recorded.

Economic unity

In addition to the requirement that the loan is used in whole or in part to finance the other contract, both contracts must form an economic unit.

According to Section 358 (3) sentence 2 BGB, an economic unit is to be assumed in particular if the entrepreneur himself finances the consideration of the consumer, or in the case of financing by a third party, if the lender is involved in the preparation or conclusion of the loan agreement operated by the entrepreneur.

The lender uses z. B. the involvement of the entrepreneur in the preparation or conclusion of the loan agreement if the loan agreement is not concluded on the borrower's own initiative, but because the distributor or intermediary submits a loan application from the lender to the consumer at the same time as the goods or service agreement.

In the case of a financed acquisition of a property or a right equivalent to a property, an economic unit can only be assumed if the lender himself procures the property or the right to a property or if, in addition to providing loans, he promotes the acquisition of the property or the right to a property through cooperation with the entrepreneur by making his sale interests wholly or partially his own, assuming functions of the seller in the planning, advertising or implementation of the project, or unilaterally favoring the seller, Section 358 (3) sentence 3 BGB.

Right of withdrawal

If contracts within the meaning of Section 358 of the German Civil Code (BGB) are linked, there are some special features in the event of a possibly declared revocation by the consumer. A right of withdrawal of the consumer with regard to the loan contract can result from § 495 Abs. 1 BGB. On the other hand, various rights of revocation come into consideration for the associated contract with Section 312 (1) sentence 1, Section 312d (1) sentence 1 and Section 485 (1) BGB. According to Section 355, Paragraph 1, Clause 1 of the German Civil Code, when exercising one of these rights of withdrawal, the consumer is no longer bound by his declaration of intent aimed at concluding the contract . Due to the principle of separation under civil law , the revocation only affects the contract on the basis of which the right of revocation exists. So that the other contract also loses its effectiveness, the declaration of intent aimed at its conclusion would also have to be revocable and revoked.

Right of revocation

In the case of connected contracts, however, Section 358 (1) and (2) of the German Civil Code (BGB) stipulate that the consumer is no longer bound by his declaration of intent aimed at concluding the other contract in the event of an effective revocation of his declaration of intent aimed at concluding one of the contracts. The revocation of the declaration of intent with regard to one contract also extends to the declaration of intent with regard to the other contract (so-called revocation access). Section 358 (1) BGB regulates the right of revocation from the goods or service contract to the loan contract and Section 358 (2) BGB regulates the reverse case. In the event that the loan agreement pursuant to Section 358 (1) BGB is seized, the existence of a consumer loan agreement pursuant to Section 491 BGB is not required; rather, any loan agreement concluded with a consumer is sufficient. However, contrary to an express reference in the law, the enforcement according to Section 358 (2) BGB must be a related contract with an entrepreneur.

This regulation is intended to ensure that the consumer does not need to stick to a loan agreement that was only concluded to finance the entrepreneur's service, despite not using the services of the entrepreneur. In the opposite case, the consumer is protected from financial overload due to his obligation to pay to the entrepreneur, since the loan agreement used for financing is then no longer available. Even when exercising the right of withdrawal, the consumer should not be able to waive the extension of the consequences of the withdrawal to the related contract. He then only has the option of concluding the contract again.

Special features upon receipt of the declaration of cancellation

The consumer has to declare the revocation to the entrepreneur according to § 355 Abs. 1 Satz 2 BGB. In the case of connected contracts, this can be either the entrepreneur with whom the consumer has concluded the contract for the goods or services, or the lender and depends on the respective right of withdrawal. The question arises as to how the case is to be assessed if the consumer wants to revoke the loan contract, but declares the revocation to the entrepreneur of the related contract. This is particularly relevant in view of the cancellation period to be observed in accordance with Section 355 (2) BGB.

The revocation is a declaration of intent that needs to be received and must generally be sent to the person against whom the revocation is to take effect. However, the entrepreneur of the connected contract can act as the recipient of the declaration of revocation towards the lender. The messenger of receipt is the person who has been ordered by the recipient to accept declarations or who is to be regarded as having been ordered according to the public opinion. When concluding the loan contract, the broker is to be regarded as having been appointed by the lender if the latter does not appear immediately.

Declarations of intent to a courier are sent to the actual addressee at the point in time at which, following the regular course of events, forwarding to him was to be expected. If the recipient sends the declaration of intent belatedly, incorrectly or not at all, this is at the expense of the recipient.

Legal consequences of revocation

If the consumer has declared the revocation, he is neither bound to the revoked nor to the associated contract. For the revoked contract, the legal consequences result directly from § 357 BGB. For the connected contract, § 358 Paragraph 4 Clause 1 BGB stipulates the corresponding application of § 357 BGB and, in the case of an existing or existing right of cancellation in accordance with § 312d BGB, the corresponding application of § 312e BGB. The related contracts are not to be treated as a single legal transaction, but as independent contracts. The reversal of the two contracts takes place in the respective performance ratio. Conversely, from Section 357, Paragraph 4, Clause 3 of the German Civil Code, this only applies if the loan has not yet accrued to the entrepreneur when the revocation takes effect.

According to § 358 Paragraph 4 Clause 2 BGB, claims for payment of interest and costs from the reversal of the loan contract against the consumer are excluded in the case of § 358 Paragraph 1 BGB.

Entry of the Lender

If the loan has already accrued to the entrepreneur when the revocation or return becomes effective, the lender enters into the rights and obligations of the entrepreneur from the related contract in relation to the consumer with regard to the legal consequences of the revocation or the return, Section 358 (4) sentence 3 BGB. This is intended to achieve a bilateral reversal between the consumer and the lender. Otherwise, the consumer would first have to refund the loan amount to the lender and then in turn demand the repayment of the purchase price from the seller. With this regulation, in particular the insolvency risk of the consumer, which he would have against the entrepreneur in the event of a purchase price repayment request, is shifted to the lender, who is usually a bank.

This involves the lender entering into the settlement relationship between consumer and entrepreneur, i.e. H. the lender completely takes the place of the entrepreneur. Although the wording of Section 358, Paragraph 4, Clause 3 of the German Civil Code is open, it can not be said that the lender merely assumes responsibility . Because then the lender and the entrepreneur would be jointly and severally liable. However, if the consumer were left with the choice between two debtors, the entrepreneur, who would not be released from his obligations if the lender took on the debt, would have to retain his rights vis-à-vis the consumer. This would result in a split in the unwinding relationship vis-à-vis different people, which would run counter to the purpose of Section 358 (4) sentence 3 BGB.

As a prerequisite for the occurrence of this debt, the entrepreneur must already have received the loan when the revocation or return becomes effective. The loan is received when the consumer has fulfilled his obligation to the entrepreneur, i.e. when a payment or credit has been made to the entrepreneur.

If the lender has entered into the rights and obligations of the entrepreneur under the related contract, the consumer can on the one hand demand the return of the partial services already provided on the loan, but on the other hand demand the return of a down payment made to the entrepreneur from his own resources . The lender, on the other hand, cannot demand repayment of the loan from the consumer in accordance with Section 358 (4) sentence 1, Section 357 (1) sentence 1 and Sections 346 ff. BGB. A performance "across the corner" is not supposed to take place. Here, the lender must contact the entrepreneur in accordance with Section 812 (1) sentence 1 alt. 2 BGB (penetration condition) or in accordance with Section 358 (4) sentence 3 analogous to BGB.

However, by entering into the debt of the entrepreneur, the lender receives a mirror image of a claim against the consumer for the return and transfer of ownership of the goods. The purpose of this claim is to secure the lender's right of recourse against the entrepreneur through the purchase item. If the consumer has already given the goods to the entrepreneur, the lender has a right of retention with regard to the loan installments paid in accordance with Section 358 (4) sentence 1, Section 357 (1) sentence 1 and Sections 348, 320 BGB. The lender can refuse repayment until he receives the goods or the loan value is returned from the entrepreneur, as his interest in security would then no longer apply.

Objection penetration

The two connected contracts are two legally independent contracts (so-called separation principle). With the regulation in Section 359 of the German Civil Code (BGB), the principle of the relativity of obligations is breached in the case of associated contracts, as the provision entitles the consumer to raise objections from the associated contract to the lender. Such an appeal can be traced back to the case law on § 242 BGB.

Consumer's right to refuse performance

Insofar as the consumer has objections to the contractor with whom he has concluded the connected contract to refuse his performance, he is entitled to refuse performance in accordance with Section 359 sentence 1 BGB with regard to repayment of the loan. As a result, the use risk with regard to the loan value date is transferred from the borrower to the lender in the event of the entrepreneur's bankruptcy. This transition is justified because the lender, by working closely with the entrepreneur, expresses a certain willingness to take on risk and displaces the consumer from his position as the person who freely dispose of the loan value.

Objections from the connected contract are understood to mean all legal obstructive, destructive and inhibiting objections and defenses, such as B. a declared set-off according to § 389 BGB or an exercised right of retention according to § 273 BGB.

Example: Consumer V concludes a sales contract with entrepreneur U on the Internet in accordance with Section 433 BGB for a used car for € 20,000. U advertises on its website that it is possible to finance the purchase price through a loan agreement with B-Bank (B). For this purpose, U provides a sample loan agreement provided by B for download. B makes use of U's cooperation, at least when preparing a loan agreement, so that the two agreements are economically unified. Furthermore, the loan with the B serves to finance the purchase contract with the U. The two contracts are connected with this. V duly fills out the loan agreement and sends it to B. V concludes a consumer loan contract with B in the amount of the purchase price in accordance with §§ 488, 491 BGB. The loan value is paid directly from B to U, whereupon V receives the car from U. It turns out, however, that the car is an accident vehicle and therefore defective i. S. d. § 434 BGB is. A supplementary performance according to § 439 Abs. 1 BGB is impossible according to § 275 BGB, so that V u. a. can demand compensation from U instead of performance due to impossibility according to § 311a Paragraph 2 Sentence 1 and § 437 No. 3 BGB. With this claim, V could offset the purchase price payment claim of U under Section 433 (2) BGB against U in accordance with Section 389 BGB or, on the basis of this claim, refuse to pay the purchase price to U in accordance with Section 273 BGB. If V were to assert one of these objections from the related contract, he could raise them against B in accordance with Section 359 sentence 1 BGB insofar as he refused to repay the loan permanently if the purchase price claim expired , otherwise until the compensation was paid.

Prevention of debtor default

In addition, the consumer can avert the occurrence of the debtor's default through his right to refuse performance. The default of the debtor according to § 286 BGB requires the enforceability of the due claim as an unwritten factual feature. Although the mere existence of a non-permanent right to refuse performance, such as the one from § 359 BGB, does not prevent the enforceability of a claim, a claim becomes unenforceable as soon as the right to refuse performance is asserted.

This effect is particularly relevant for a possible termination of the loan by the lender to the consumer according to § 488 para. 3 sentence 1 i. V. m. Section 498 (1) BGB. The prerequisite for such a termination is that the consumer is in default with the payment of the loan installments in accordance with § 286 BGB. If the consumer now asserts his right to refuse performance from § 359 BGB, this leads to the unenforceability of the loan claim, with the result that the consumer does not fall into default. The loan agreement could then not according to Section 488 (3) sentence 1 in conjunction with V. m. 498 Paragraph 1 BGB. However, the right to refuse performance must be declared before the termination. There is no retroactive effect.

Exclusion of the appeal

According to § 359 sentence 2 BGB, objections based on a contract change agreed between the entrepreneur and the consumer after the conclusion of the consumer loan contract are excluded from this so-called. This exception serves the legitimate interest of the lender that he did not have to reckon with subsequent charges when concluding the loan agreement. If an objection were allowed to take action in these cases, the lender would be burdened by its effects, although there would be no legitimate interest on the part of the entrepreneur or consumer.

Subsidiarity of objection penetration

According to § 359 sentence 3 BGB, the consumer can only refuse to repay the loan in the event of an existing claim for subsequent performance against the entrepreneur if the subsequent performance has failed.

A supplementary performance has failed if it can no longer be expected that it will be properly performed within the appropriate period and it would therefore be pointless to wait any longer before asserting any secondary rights. In particular, in the sales law in accordance with Section 440 sentence 2 BGB, a subsequent improvement after the unsuccessful second attempt is deemed to have failed unless the nature of the item or the defect or other circumstances indicate otherwise.

Reclamation Access

The §§ 358, 359 BGB meet no specific rules regarding the restitution for cases in which the contract involved is invalid or expired not because of withdrawal of the consumer, but for other reasons such. B. by contestation or resignation . The question arises here whether the consumer can be granted a repayment claim against the lender with regard to loan installments that have already been paid, despite the loan contract that is still in effect.

If the connected contract was void from the outset, the consumer undisputedly has a right to repayment of any loan installments from § 812 Paragraph 1 Clause 1 Alt, despite the loan contract still in effect . 1, § 813 i. V. m. § 359 S. 1 BGB. Since the ineffectiveness of the connected contract already existed at the time of payment of the loan installments, the consumer can assert this as a permanent objection to the lender.

If, however, the connected contract is only converted into a restitution obligation after payment of any loan installments after payment of any loan installments in accordance with Section 346 (1) of the German Civil Code (BGB), various approaches are used, as in this case the requirements of Section 813 of the German Civil Code (BGB) are not met.

Even if the contract is not ineffective from the start, the BGH wants the consumer to have a claim for repayment against the lender in an analogous application of section 358 (4) sentence 3 a. F. (Section 358 (4) sentence 5 new version) BGB i. V. m. Section 346 (1) and Section 357 (1) of the German Civil Code. Such a recovery procedure is justified with extensive consumer protection. Above all, a bilateral reversal should take place so that the lender, and not the consumer, bears the entrepreneur's risk of bankruptcy.

On the other hand, another view rejects such a claim for recovery in this case. The legislature just wanted to regulate only one breach of objections in Section 359 of the German Civil Code and thus consciously decided against reclaiming it. Section 358 (4) sentence 3 BGB is specifically tailored to the situation of the right of withdrawal. There the lender could postpone the payment of the loan value to the entrepreneur until it was clear that the consumer had not withdrawn. If the claim for repayment were allowed, the risk of the lender would increase unreasonably through an extension to a longer period as part of the warranty for defects . In addition, there is no reason to put the consumer in a better risk position in a linked contract than in an installment transaction. In the case of a partial payment transaction, the consumer can only stick to the service provider and would have to bear the risk of insolvency. It is not clear why in a linked contract the consumer should now receive a second, regularly more solvent debtor. According to this view, the consumer must therefore stick to the entrepreneur with whom he has concluded the goods or service contract. According to § 346 Paragraph 1, §§ 323 and 437 No. 2 BGB, he can claim back the purchase price with which he could then repay the loan.

literature

  • Peter Bülow / Markus Artz , consumer private law, 3rd edition 2011, CFMüller, Heidelberg u. a., ISBN 978-3-8114-9792-4 .
  • Christoph Godefroid, Consumer Credit Contracts, 3rd edition 2008, CH Beck, Munich, ISBN 978-3-406-50719-9 .
  • Mathias Habersack, in: Munich Commentary on the Civil Code , Volume 2 - Law of Obligations General Part, 6th Edition 2012, §§ 358-359a BGB, CH Beck, Munich, ISBN 978-3-406-61462-0 .
  • Sibylle Kessal-Wulf , in: J. von Staudinger's Commentary on the Civil Code with Introductory Act and ancillary laws , Book 2 - Law of Obligations, Revised 2004, Sections 358 - 359 BGB, Sellier / de Gruyter, Berlin, ISBN 978-3-8059 -1002-6 .
  • Rüdiger Martis / Alexander Meinhof, Consumer Protection Law , 2nd edition 2005, CH Beck, Munich, ISBN 978-3-406-50991-9 .

Web links

Individual evidence

  1. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 358 Rn. 1.
  2. ↑ Law on the introduction of a model revocation information for consumer loan contracts, on the amendment of the regulations on the right of withdrawal for consumer loan contracts and on the amendment of the loan brokerage law of July 24, 2010 ( Federal Law Gazette I p. 977 ).
  3. ↑ Act to adapt the provisions on compensation for the cancellation of distance contracts and related contracts of July 27, 2011 ( Federal Law Gazette I p. 1600 ).
  4. ↑ BGH, judgment of July 21, 2003 - II ZR 387/02 , NJW 2003, 2821; BGH, judgment of April 25, 2006 - XI ZR 193/04 , NJW 2006, 1788; BGH, judgment of June 19, 2007 - XI ZR 142/05 , NJW 2007, 3200; BGH, judgment of December 18, 2007 - XI ZR 324/06 , NJW-RR 2008, 1436.
  5. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 358 Rn. 3.
  6. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 358 Rn. 5; Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 358 Rn. 18th
  7. ↑ Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 358 Rn. 22 mwN
  8. ↑ BSG, decision of 7 October 2004 - B 3 KR 14/04 R , NJW 2005, 1303 (1304).
  9. ↑ Ellenberger, in: Palandt BGB , 72nd edition 2013, § 130 Rn. 9.
  10. ↑ BGH, judgment of October 11, 1995 - VIII ZR 325/94 ( 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. , BGHZ 131, 66 (71). @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  11. ↑ BGH, judgment of March 15, 1989 - VIII ZR 303/87 ( 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. , NJW-RR 1989, 757. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  12. ↑ Ellenberger, in: Palandt BGB , 72nd edition 2013, § 130 Rn. 9.
  13. ↑ BT-Drucks 11/5462, 24.
  14. ↑ BGH, judgment of March 10, 2009 - XI ZR 33/08 , NJW 2009, 3572 (3574).
  15. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 358 Rn. 21; Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 358 Rn. 82; Kessal-Wulf, in: Staudinger BGB , revised 2004, § 358 Rn. 67; Saenger, in: Erman BGB , Volume 1, 13th edition. 2011, § 358 Rn. 27.
  16. ↑ So but Bülow, in: Bülow / Artz, Consumer Credit Law , 7th edition 2011, § 495 Rn. 294.
  17. ↑ BT print. 11/5462, 24.
  18. ↑ BGH, judgment of October 11, 1995 - VIII ZR 325/94 ( 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. , BGHZ 131, 66 (73). @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  19. ↑ BGH, judgment of October 11, 1995 - VIII ZR 325/94 ( 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. , BGHZ 131, 66 = NJW 1995, 3386 (3388). @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  20. ↑ For a penetration condition BGH, judgment of September 17, 1996 - XI ZR 164/95  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , BGHZ 133, 254 (263)@1@ 2Template: Dead Link / dejure.org  
  21. ↑ Also for a penetration condition Saenger, in: Erman BGB , Volume 1, 13th edition 2011, § 358 Rn. 29; Schulze, in: Schulze / Dörner / u. a., BGB , 7th edition 2012, § 358 Rn. 13.
  22. ↑ On the other hand, an analogous application of Section 358, Paragraph 4, Clause 3 BGB, advocating Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, Section 358 Rn. 89; Dauner-Lieb, consumer protection in related businesses (§ 9 VerbrKrG) , WM special hatchet. No. 6/1991, p. 21.
  23. ↑ OLG Düsseldorf, judgment of April 29, 1997 - 24 U 141/96  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , NJW 1997, 2056 (2058).@1@ 2Template: Dead Link / dejure.org  
  24. ↑ Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 358 Rn. 84; Saenger, in: Erman BGB , Volume 1, 13th edition. 2011, § 358 Rn. 28.
  25. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 359 Rn. 1.
  26. ↑ Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 359 Rn. 24.
  27. ^ BGH, judgment of September 25, 2001 - XI ZR 109/01 , BGHZ 149, 43; Kessal-Wulf , in: Staudinger BGB , revised 2004, § 359 Rn. 7th
  28. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 286 Rn. 9; Löwisch, in: Staudinger BGB , revised 2004, § 286 Rn. 12
  29. ↑ Grüneberg, in: Palandt BGB , 72nd edition 2013, § 286 Rn. 10 f .; on the other hand, the claim is unenforceable even with the mere existence of a permanent (so-called peremptoric) objection such as § 214 BGB: Ernst, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 286 Rn. 22; in detail also Löwisch, in: Staudinger BGB , revision 2004, § 286 Rn. 12 ff.
  30. ^ Ernst, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 286 Rn. 28; Grüneberg, in: Palandt BGB , 72nd edition 2013, § 286 Rn. 10.
  31. ↑ Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 359 Rn. 46.
  32. ^ Faust, in: Bamberger / Roth BGB , Volume 1, 3rd edition 2012, § 440 Rn. 32.
  33. ↑ BGH, judgment of December 4, 2007 - XI ZR 227/06 , NJW 2008, 846.
  34. ↑ Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 359 Rn. 66; Grüneberg, in: Palandt BGB , 72nd edition 2013, § 359 Rn. 7th
  35. ↑ BGH, judgment of July 21, 2003 - II ZR 387/02 , NJW 2003, 2821.
  36. ↑ Habersack, in: Munich Commentary on the BGB , Volume 2, 6th edition 2012, § 359 Rn. 75; Kessel-Wulf , in: Staudinger BGB , revised 2004, § 359 Rn. 34; Larenz / Canaris, Law of Obligations Special Part , Volume II / 2, 13th edition 1994, § 68 I 5.
  37. ↑ Larenz / Canaris, Law of Obligations Special Part , Volume II / 2, 13th edition 1994, § 68 I 5.