Traffic custom

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The traffic custom is an indefinite legal term , which has the viewpoints , customs and the uniform, uniform and voluntary actual practice by legal subjects in legal dealings.


The compound traffic custom is made up of "traffic" and "custom". Traffic is to be understood as legal traffic, i.e. the legal relationships between legal subjects; Sitte is everyone in a society often practiced custom . Accordingly, it is a common practice if legal relationships are not based wholly or in part on legal norms , but are shaped through constant practice. In order to obtain legal certainty in this regard , the legislature has taken the objective characteristic of common usage into account. Since it can be assumed that the contracting parties also want to take the customs and traditions of legal relations as a basis for their specific legal relationships, the custom is to be observed.

In earlier times the law arose out of custom, i.e. the views of the social groups concerned. The affected social groups are legally referred to as "public". The prevailing practice is contrary to the common law no legal norm but in the interpretation of contracts ( § 157 a BGB) and in determining the content of the contractual obligation of good faith ( § 242 to take account of BGB). The custom of trade is of particular importance as the custom of the merchants .


In 1873, the constitutional law teacher Paul Laband went into detail for the first time in his treatise "Die Handelsusance". The concept of traffic custom was inserted into the draft text for the first time during the deliberations on the new BGB between 1881 and 1889. A dissertation from 1894 dealt with common customs, which, like commercial customs, served to determine the party will. The BGB and the HGB finally adopted the indefinite legal term in some provisions in January 1900 without making a legal definition . In October 1903, when interpreting the new legal provision, the Reichsgericht (RG) determined that the custom was not a legal norm, but an actual practice. As early as January 1907, the RG took the view - also still valid today - that the custom of the trade should be taken into account even without the knowledge of the contracting parties. The commercial custom in May 1926 understood it to be “... a type of business treatment as practiced by all circles involved in the relevant branch of business, albeit with a local restriction, and not just a view of the circle to which one Business party belonged to ".

In September 2009, the Federal Court of Justice (BGH) once again put together the requirements of its permanent jurisprudence on common practice : "A common practice as a rule that is binding on the public involved requires that it is based on a uniform, uniform and voluntary actual practice that occurs within a has formed a reasonable period of time for comparable business transactions and which is based on a uniform view of all parties involved in the relevant business transactions. It is not enough for a certain exercise to be practiced only by a certain, even if quantitatively significant, section of the public involved; rather, it must have prevailed as a unified view within all circles involved ”.

Mention in laws

The German Civil Code (BGB) mentions the indefinite legal term in §§ 157 and 242 BGB, the Commercial Code (HGB) in §§ 412, 486 and 531 HGB. As far as § 157 BGB is relevant, common customs become part of the contract and have priority over dispositive law ; if Section 242 of the German Civil Code (BGB) is to be used, the common customs only apply in addition if there is no statutory regulation. In addition, the custom of traffic is mentioned in the ZPO , the ZVG and the UrhG .


If contracts are unclearly formulated and therefore need to be interpreted, traffic custom must be taken into account. According to the legal commentary by Karl Larenz and Manfred Wolf , traffic custom is an actual practice or linguistic custom existing in "traffic in general or within a certain circle of road users, which the members of the respective traffic circle regularly use and which are therefore generally considered to be can be assumed known ". The following requirements are necessary for the validity of common customs:

  • The constant practice of certain customs: There must be a constant, uniform and voluntary actual practice that has developed over a long period of time.
  • The constant practice within established public: Customs can be industry-specific and be subject to local influences, whereby the knowledge of the parties is not important.
  • It can also differ locally: A certain custom need not have spread across the country, it is sufficient if it is local and has gained dominant influence there (see Trier wine auction ).
  • The validity of the custom does not depend on whether the parties knew it. For the application of custom, it is sufficient that the party belongs to the relevant public.

The custom is part of the contract, unless a contractual partner expressly objects to it. If the declared will contradicts the custom, this is decisive.


In Austria , too, custom is to be taken into account when interpreting declarations of intent . According to Section 863, Paragraph 2 of the Austrian Civil Code , in the event of implied acts or omissions, the customs and practices applicable in fair dealings must be taken into account. According to Section 864 (1) ABGB, a contract is also concluded if an express declaration of acceptance is not expected and the request is actually complied with within a reasonable period. In addition, according to § 914 ABGB, the literal sense of the term is not to be used when interpreting contracts, but rather to research the intention of the parties and to understand the contract as it corresponds to the practice of honest dealings.

In Switzerland , the custom is only applicable if there is an express reference in the Code of Obligations (OR). This only affects three areas, namely, the local use ( Art. 466 OR to Art. 304 OR), the commercial practice ( Art. 124 , para. 3 OR and Art. Art. 429 , para. 2 OR) and the business practice ( Art. 184 Abs 2 OR, Art. 189 para. 1 CO, Art. 201 CO and Art. 211 para. 2 CO).


  • Paul Oertmann : Legal system and custom, especially according to civil law: at the same time a contribution to the teachings of the interpretation of legal transactions and of revision , Scientia Verlag, Aalen 1971, ISBN 3-511-00796-8 .
  • Peter Rummel: Contract interpretation according to the traffic custom, Manz, Vienna 1972, ISBN 3-214-06909-8 . (At the same time: dissertation at the University of Vienna, 1970).
  • Nadia Al-Shamari: The traffic custom in § 242 BGB: Concept and application since 1900 , Mohr Siebeck, Tübingen 2006, ISBN 3-16-149150-5 . (At the same time: Dissertation at the University of Frankfurt am Main, 2005).

Individual evidence

  1. Christian Heinrich, Formal Freedom and Material Justice , 2000, p. 396 ff.
  2. ^ Curt Tengelmann, The Right to Buy , 1964, p. 18
  3. Carl Creifelds, Legal Dictionary , 2000, p. 1431
  4. Paul Laband, Die Handelssusance , in: Journal for the entire commercial law and commercial law , 1873, p. 4666 ff.
  5. Nadia Al-Shamari, Die Verkehrssitte in § 242 BGB: Concept and application since 1900 , 2006, p. 18
  6. Konrad Hagen, Die Usance und Treu und Glaub im Verkehr , 1894, p. 7
  7. RGZ 55, 375, 377
  8. ^ RG, judgment of January 19, 1907, Az .: I 263/03
  9. ^ RG, judgment of May 19, 1926, Az .: I 309/25 = RGZ 114, 9, 12
  10. ^ BGH, judgment of September 30, 2009, Az .: VIII ZR 238/08
  11. Hans Jürgen Sonnenberger , Verkehrssitten im Schuldvertrag , 1970, p. 120
  12. ^ Karl Larenz / Manfred Wolf, BGB general part , 8th edition, 1997, § 28 Rn. 47
  13. ^ BGH, judgment of September 30, 2009, Az .: VIII ZR 238/08
  14. ^ Christian Heinrich, Formal Freedom and Material Justice , 2000, p. 397
  15. ^ BGH, judgment of December 12, 1953, Az .: VI ZR 242/52
  16. ^ Curt Tengelmann, The Right to Buy , 1964, p. 18
  17. ^ BGH, judgment of December 12, 1953, Az .: VI ZR 242/52