Interrogation theory

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The interrogation theory deals with the question under which conditions an oral declaration of intent is received among those present. The German Civil Code (BGB) does not expressly regulate such a case. A verbal declaration of intent among those present, which also includes transmission by telephone in accordance with Section 147 (1) sentence 2 BGB, is usually received when the recipient can hear it. However, this assumes that the recipient is also able to correctly grasp the declaration. If the recipient is deaf or lacks language skills, the declaration cannot be received. The declaring party then bears the risk.

It is controversial whether this principle can be deviated from if the recipient understands the declaration incorrectly or incompletely.

Rigorous interrogation theory

The strict interrogation theory always demands a correct understanding of the declaration of will, otherwise the declaration will not be received. The declaring party therefore always bears the risk of the declaration being misunderstood. This theory is supported by its clarity and conciseness, which protects the recipient.

Limited theory of interrogation

This view affirms the receipt of an oral declaration among those present if there is no justified reason for the person making the declaration to doubt that the recipient has heard his words correctly and completely. The explanation is not given if the person making the declaration is aware of the obstacle to perception. If there is any doubt about the understanding, the person making the declaration must repeat his or her declaration and explain it to the recipient. The restricted interrogation theory thus protects the interests of legal transactions and distributes the risk of failure to understand among those involved.

Examples

  • 1st example
U resigns his foreign employee A. He nods in agreement, although he did not understand U correctly because of poor knowledge of German.
According to the limited theory of interrogation, U should have expected that A did not understand him correctly and should have asked whether A had taken note of the termination. There is no receipt of the termination.
  • 2nd example
X orders 200 fabric polar bears from Y by telephone. Y is hard of hearing due to age, but X does not know and understands 100 fabric polar bears. Y agrees to deliver the stuffed polar bears.
The hearing loss of Y could not be recognized by X. Y could have repeated the amount ordered to prevent misunderstanding due to hearing loss. The offer of the X over 200 material polar bears has thus been effectively received using the restricted interrogation theory and has been accepted by promising delivery.

literature

  • Musielak, Hans-Joachim (2002): Basic course BGB , 7th edition, CH Beck, ISBN 3-406-48869-2