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A contract is the agreement of two or more legal subjects to bring about a legal consequence. It consists of at least two declarations of consent . In one on the principle of private autonomy based legal system such as the German, the contract for the detail, the most important legal means to define one's own living conditions is.


Anyone who is legally competent can conclude a contract . Legal capacity is the ability to conduct legal transactions independently and effectively. Contracts, especially sales contracts , are the most common legal relationships in everyday life. The contract is an essential means of a private, autonomous way of life through autonomous legislation. In constitutional states , the principle of freedom of contract is known as an expression of private autonomy, which allows anyone to conclude contracts that can be freely determined both with regard to the contractual partner and the subject matter of the contract, provided that they do not violate mandatory provisions of applicable law.


The contract was already known in the Old Testament . In Genesis it says: “ Abraham took sheep and cattle and gave them to Abimelech , and they made a covenant with one another” ( Gen 21:27  EU ). The mutual obligation inherent in a contract was also common: “They said: We see with seeing eyes that the Lord is with you. That is why we said: There should be an oath between us and you, and we want to make a covenant with you ”( Gen 26.28  EU ).

The Roman law knew a plurality of differently designated types of contracts, but there was no uniform contract law. Already in 116 BC The contract is documented ( Latin contractus , "to contract"). In 160 AD, Gaius listed in his institutions the actionable real contract ( Latin re ), verbal contract ( Latin verbis ), litteral contract ( Latin litteris ) and mere consent ( Latin consensu ). The lawsuits under the law of obligations therefore had to be based on either a contract or a crime .

In Germany, the word contract first appeared in Friedberg in 1287 , when there was talk of "a letter ... saying about a contract". The canonists of the 12th century used the word pact (from Latin pactum ; devil's pact ) as the basic term for the contract and presented baptism as an agreement between God and man, as a pact with mutual rights and obligations. From 1465 the borrowed firm language of the contract (from Latin contractum ) while the linguist Philip of Zesen 1651 returned to the contract. In 1721, Samuel Oberländer defined the contract as "a binding back and forth negotiation ... as a true printed agreement of two or more people on a certain matter ...". The General Prussian Land Law (APL) of June 1794 dedicated the entire fifth title (I 5, §§ 1-453 APL) to the contract and defined it as "mutual consent to the acquisition or sale of a right" (I 5, § 1 APL) . By accepting a valid promise, the contract was considered concluded (I 5, § 79 APL). The APL comprehensively regulated contract law without going into individual contract types.

The Civil Code (CC) introduced in France in March 1804 only provides for the mandatory contract ( French contrat ) in Art. 1101 CC , in which the declaration of intent serves to create, modify, transfer or expire a liability . The creditor of the delivery of goods already becomes the owner by agreement, but handover is not required. The French legal doctrine designates with "contrat" ​​any amalgamation of two or more declarations of intent which are aimed at the creation of legal consequences . The Austrian ABGB , which came into force in January 1811, regulates the contract in detail in §§ 859 ff. ABGB. In accordance with Section 861 of the Austrian Civil Code (ABGB), contracts are concluded informally by means of declarations of intent. The Swiss Code of Obligations (OR) of March 1911 is also based on the general principle of freedom of form (Art. 11 Para. 1 OR), whereby the mutual expression of will of the parties is required to conclude the contract (Art. 1 Para. 1 OR).

In England the contract ( English contract , agreement ) is part of the English international contract law, which has been based on two different legal sources since 1990 . On the one hand, there is the complex of common law with court decisions that go back to the 17th century; on the other hand, there is the European Convention on the Law Applicable to Contractual Obligations ( European Obligations Convention , EVÜ), which has been implemented by the Contracts (Applicable Law) Act since July 1990 applies. Thus the Rome Convention part of English statutory law is ( English statute law has become) and has the rules of the common law displaced. From December 2009, the EVÜ was replaced by Regulation (EC) No. 593/2008 (Rome I) .

The contract as a social institution

A contract coordinates and regulates social behavior through mutual self-commitment . It is concluded voluntarily between two (or more) parties. In the contract, each party promises to do the other, something specific or refrain (and thus a desired by the other party power to provide). This makes the future more predictable for the parties. If one party breaks the contract, this can release the other party in whole or in part from its obligation to fulfill the contract.

The content of the contractual agreement must be understood in the same way by the contracting parties. Otherwise there will be different interpretations of the contract and the purpose of the contract, the coordination of future behavior, will be missed. For this reason, deception by the other party about what has been agreed is not permitted.

The commitment by promises presupposes that the party regarding the subject matter of age and speak for themselves and can decide and must, the party that must legally be legally competent. A legally competent person can make an effective declaration of intent and participate in business dealings. A person incapable of doing business, however, cannot make an effective declaration of intent. Each party must also be fundamentally able and entitled to act as promised. In this respect, the parties must be correspondingly autonomous and authorized to dispose of them.

If the services of the parties are staggered, the party making the advance payment must trust that the other party will also still fulfill its obligations , otherwise there is a risk of advance payment . Since no one will conclude a contract without a basis of trust , it is important for the parties to have a good reputation as reliable contractual partners.

If the agreed services extend well into the future, unforeseen events may occur in the meantime that render the intentions of the parties associated with the contract irrelevant (loss of the basis of the business ). In this case, there may be a cancellation coming of the contract.

The content of a contract is negotiated by the parties. Which agreement is ultimately reached depends on the interests of the parties, their options for action and their negotiating skills . Basically, each party is free to pursue their interests freely within the given legal framework . In the case of rational action, the parties will only conclude a contract that puts them in a better position than without this contract.

Between the point where a contract becomes beneficial to the parties and the point where it becomes disadvantageous, there is more or less room for negotiation. The bargaining power of the parties can be very different, depending on how urgently they need the conclusion of the contract.

The fact that contracts are concluded voluntarily does not mean that there is no coercion involved. If no contract is concluded, the status quo continues to apply . This status quo can be tolerable for different parties. If z. For example, if a party finds itself in an emergency from which only a contract with a certain other party can free it, the freedom not to conclude the contract is, among other things. U. only the freedom to degenerate in an emergency.

This contradiction of coercion in freedom can also be the result of state requirements. Example: The compulsion for car owners to take out car insurance combined with the freedom to choose the provider and tariff.

The freedom of contract is one of the basic elements of the market economy alongside property rights and competition .

The contract in law

In German law, a contract denotes a legal transaction involving at least two sides .

Contracts are basically free of form. This means that you can close it not only in writing, but also verbally (e.g. on the phone) or even without a word through coherent behavior (e.g. by taking the goods from the assembly line at the supermarket checkout and putting them in your basket) .

Formal contracts, i.e. written contracts in a structured form, are usually divided into three parts:

  • At the beginning , the contractual partners ( counterparties ) or participants are named first.
  • In the main part , the declarations of intent are set out to which the contractual partners undertake or which the participants impose on themselves or the goal they want to achieve through the contract.
  • At the end , a signature , seal, etc. confirms that the contracting parties have understood the text of the contract and agree with it.

For some contracts, a certain form ( written form , text form , electronic form , certification or certification ) is required by law or contract.

German law

The contract is a multi-sided legal transaction , which comes about through corresponding declarations of intent by the parties involved. Declarations of intent correspond to one another if they want to bring about the same legal consequence. The contract is a highly abstract legal term. Its technical definition is therefore hardly understandable for non-lawyers. Formulated in a generally understandable way, the contract is the means envisaged by the legislature so that two or more people can regulate something in a legally binding manner, ie can set legal consequences between each other.

The content of the contract is usually that the contracting parties commit themselves to a certain act (or omission) (obligation contract, § 311 Abs. 1 BGB). But there are also contracts through which no obligation arises, but instead ownership of an item is transferred (disposition contract, see e.g. § 929 BGB and § 398 BGB). Even this fundamental distinction shows how difficult it is to define the contract in more concrete terms.

A contract can be concluded in two different ways. One contractual partner makes the other an offer (in the BGB this is called "application", § 145 BGB ) and the other accepts it (acceptance , § 151 BGB). This is the rule for verbal and simple contracts. The second way is for the contracting parties to jointly agree to a contract text (as is the case, for example, with a notarized contract). This is more complex contracts in writing the rule.

The content of the contract can contain a large number of contractual conditions that apply as general terms and conditions ( Section 305 (1) BGB). These general contractual conditions primarily include the delivery and payment conditions , while the contract components that are not pre-formulated and therefore individually negotiated are referred to as individual agreements .

Contract types

The contract types or contract types differ in the subject matter of the contract, i.e. the main performance obligation resulting from a contract . In particular, there is the marriage contract , inheritance contract , social contract , blame treaties such as labor , service , purchase , lease - lend , rent , lease or contract for work and public service contract , treaty , collective agreement , third-party beneficiary or international law Contract . In finance , one knows the generic terms financial contract , loan agreement , security agreement and insurance contract for a variety of specific types of credit and business . The mixed contract contains elements of these typical contracts, but cannot be clearly subsumed under one type. This includes, for example, the accommodation contract , which contains elements of tenancy, service, work and purchase contract law.

Contract negotiation

As contract negotiation , the phase until the unification of two ( mutual negotiation ) or more parties ( multipage negotiation ) and the mutual declaration of intention associated, ie the phase of a contract to completion understood. This phase can be developed both formally and informally in public law, economic or business management or in the private sector. In any case, similar elements and internal sequences are instrumentalized in different ways.

Although contractual negotiations are non-binding and the contractual partners are only obliged to provide a service when the contract is concluded, they already establish a so-called contractual obligation in accordance with Section 311 (2) BGB. This obliges the negotiating partners to be careful and considerate. If a negotiating partner violates one of these obligations, he can be liable to the other due to negligence in contract negotiations .


Contract negotiations are particularly used in connection with material rights , the exchange of goods and services or the licensing of intangible rights ( patents , trademarks ). Contract negotiations, for example, represent the goal-oriented process of renting or leasing economic goods and services of distribution policy in the marketing of a company. In sales , a formal distinction is made between economic, private and public exchange processes. On the other hand, contracts are generally disputed in a judicial dispute or in their fulfillment or the lawful conclusion as such.

The delimitations in the private or social context of contract negotiations, for example in the reification of sexuality and social contract negotiations in the family context, as well as those in public law (e.g. in the context of budget negotiations by public corporations) and contractual relationships of legal entities that have to be formally clarified nevertheless make it possible to recognize common identifying features:

  • Offer and acceptance constitute a contract.
  • The goods to be negotiated can be tangible, immaterial, but also social values.
  • Contract negotiations are often concealed, that is, masked by social behavior.
  • A well-planned negotiation is sometimes brought about unconsciously (e.g. in upbringing).
  • Social norms and formal requirements, for example in court, are operationalized differently.

Conscious negotiation as such in the area of ​​personal relationships for the purpose of upbringing , marriage on trial or prostitution is often formally denied by the interacting parties (cf. also exchange (sociology) ), although these negotiations, for example, relate to operationalized emotions as a contractual object.

Compared to the unconscious negotiation of needs in the private and interpersonal area, contract negotiation in the economic or public law framework often only differs in the specification of a written form and certain sequences in the progress of the negotiations, some of which are legally prescribed in the offer system.

Usually the individual phases of social negotiations are not formally indicated or expressed. It is more common here to have a smooth transition from one to the next phase, while the opening and closing of a negotiation are often accompanied by a (non-verbal) signaling act . It is not necessary, both legally and in terms of contact law, to always fix a compromise in writing.

Course of the informal or social negotiation

The parties initially express conflicting demands and then approach each other in order to conclude a contract. This is done in a process of concessions or the search for new alternatives. Basic negotiation interventions and phases of negotiation in free economic or private contract negotiations are:

  1. Expression of interest
  2. weighting
  3. Weighing of interests
  4. Compromise finding
  5. Conclusion of contract

It is initially of minor importance who formally opens the negotiation and that this sequence is only the most likely and not the only conceivable one. During the course of a negotiation, both non-verbal and strategic elements, sometimes also negotiating aids (so-called seconds ), can accompany the dispute, so that the individual phases diverge or overlap or are repeated irregularly.

Various theories of interaction, in particular the theory of the elementary forms of social behavior by George C. Homans (1961/1972), are suitable for these purposes. Homans tries to interpret the communication, which is based on the principles of learning theory through motivation and reward or punishment. The sales process thus becomes a social, dynamic exchange process, the result of which depends on the mutual communication between seller and buyer. Rolf Schoch even takes the opinion that social interactions are a necessary prerequisite for the existence of a sales transaction. Studies show that the success of the sales process depends not only on characteristics of the seller and buyer, but also on the mutual perception of the interacting people (see sales psychology ). In particular, the interaction of a contract negotiation is only maintained as long as sufficiently large rewards are expected.


Internationally, the word for contract is mostly derived from the Latin language ( Latin contractus , plus German  contract ). The contract is English contract , French contrat , Italian contratto or Portuguese contrato . Only the Netherlands deviate from this ( Dutch overeenkomst ).

The Austrian contract law corresponds to the German. A contract is concluded there in accordance with Section 861 of the Austrian Civil Code (ABGB) through the mutual will of two contracting parties. Contracts can also be concluded tacitly through implied action ( Section 863 (1) ABGB). The consumption , keeping or using unsolicited goods applies under § 864 2 Civil Code par. Not as accepting an application. According to Section 869 of the Austrian Civil Code, acceptance must be freely, seriously, determined and understandable. The nullity of immoral or illegal contracts is regulated in § 879 ABGB. In general, contracts are valid informally ( § 883 ABGB).

To conclude a contract is also in Switzerland , the matching mutual expression of will of the parties is required ( Art. 1 OR ). Sending an item that has not been ordered is not a request in accordance with Art. 6a OR, the recipient is not obliged to return the item or to keep it. According to Art. 11 OR, contracts only require a special form to be valid if the law prescribes such a form. The nullity of immoral or illegal contracts is regulated by Art. 20 OR. According to Art. 24 OR, certain errors render the contract ineffective; Calculation errors do not prevent the contract from being binding, but must be corrected.

In France , the contract ( French contrat ) according to Art. 1101 Code civil (CC) is an agreement of will between two or more persons, which is intended to create, modify, transfer or terminate obligations. According to Art. 1102 CC, everyone is free to conclude or not conclude contracts, to choose his contractual partner and to determine the content and form of the contract within the legally stipulated limits.

The common law goes with the dogma of the Consideration (England and Wales) and the United States in contracts from the requirement of consideration ( English consideration ) from. It is a prerequisite for the enforceability of a contract in the event of a breach of contract . The basic idea here is that contractual promises should only be legally enforceable if they are part of a business ( English bargain ). In US Common Law, the principle applies that the equivalent of the consideration is not examined, so that an appropriate consideration ( Latin quid pro quo ) is therefore not required. Any consideration , no matter how low, is sufficient for the binding effect of a promise. After Case law (already a "peppercorn" enough in return English peppercorn ). The common law projected into contracts a guarantee by ( English warranty ) into it. If the contractually promised service does not cause is a breach of contract ( English breach of contract ) prior to, regardless of whether it is not, provided too late or bad; the obligee can claim damages or in the event of a breach of fundamental contractual obligations ( English fundamental breach ) withdraw from the contract ( English discharge by breach ).

See also

Web links

Wiktionary: contract  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Palandt, BGB . 78th edition. 2019, p. 164 (introduction before section 145, marginal no. 1) .
  2. ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1448
  3. Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 132 ff.
  4. Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 232.
  5. ^ Gaius, Institutiones , 3, 89 ff.
  6. ^ Gaius, Institutiones , 4, 2.
  7. ^ Document book of the city of Friedberg, 1216-1410 , Volume 1, 1904, p. 40.
  8. Jump up ↑ Philipp von Zesen, The Adriatic Rosemund , 1651, p. 44
  9. ^ Samuel Oberländer, Lexicon Juridicum Romano-Teutonicum , 1721, p. 265 .
  10. General Land Law for the Prussian States, Volume 1, 1806, p. 62 .
  11. Ambroise Colin / Henri Capitant, Cours élémentaire de droit civil français , Volume II, 1948, pp. 257 ff.
  12. Mathias Kuckein, The “Consideration” of Overriding Norms in German and English International Contract Law , 2008, p. 155 .
  13. BGH NJW 1984, p. 482
  14. Carl Friedrich Graumann , Interaction and Communication , 1972, p. 1126 ff.
  15. George Caspar Homans, Theory of the Social Group , 1972, pp. 19 f.
  16. ^ Marion Klammer, Nonverbal Communication during Sales , 1989, p. 187.
  17. Rolf Schoch, The Sales Process as a Social Interaction Process , 1969, p. 95.
  18. ^ Rolf Schoch, The sales process as a social interaction process , 1969, p. 135.
  19. Thomas Söbbing (Ed.), IT Outsourcing Handbook , 2015, p. 48 .
  20. Ferdinand Fromholzer, Consideration: US-American law compared to German law , 1997, p. 22 .
  21. John D. Calamari / Joseph M. Perillo, Cases and Problems on Contracts , 2003, pp. 177 ff.
  22. Omaha National Bank v. Goddard Realty, Inc , 316 NW 2d 306, 210 Nebraska 604 (1982).
  23. Konrad Zweigert / Hein Kötz, Introduction to Comparative Law , 3rd edition, 1996, p. 501 f.