Contract with protective effect in favor of third parties

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The contract with protective effect in favor of third parties (abbreviated VSD ) is a special case of the contract in favor of third parties . In contrast to the latter, a third party generally has no claims of its own against the debtor, but is only covered by the scope of protection of the contract. According to the prevailing opinion, it is seen as a sub-section of § 328 BGB .

General

The starting point is the existence of a contractual relationship between the obligee (as the recipient of the promise) and the debtor (as the person making the promise). However, the contracting parties do not agree, as in the case of a contract in favor of a third party, that payments should be made to a third party , but only that a third party should be included in the scope of the contract. The third party's need for protection can result from duties of care, which in turn affect the contract and which is why extension protection is required.

The associated expansion of contractual responsibility can be seen as a special embodiment of the inter partes effect in the application of relative rights . Like the third-party damage liquidation , the contract with protective effect in favor of third parties is an equity institution of jurisprudence and not a separate claim. Equitable case law is necessary in certain constellations because tort law often does not offer sufficient protection and the injured third party who is worthy of protection therefore deserves contractual involvement. Although the third party has no primary claims of its own, it can nevertheless be entitled to claims for damages at a secondary level. The form of contract is also applicable to pre-contractual obligations such as the cic , in accordance with Section 311 (2) in conjunction with Section 280 (1) in conjunction with Section 241 (2) BGB.

In order to be able to justify the inclusion, the third party needs to be “close to the services” to the contracting parties. He must come into contact with the performance to be provided by the debtor as intended in the same way as the obligee. For his part, the creditor must have a “legitimate interest” in protecting the third party. Such an interest is given in particular in connection with duties of care . They can usually be found in family law ( Sections 1297 to 1921 BGB ) or labor law ( Sections 617 to 619 BGB). For both contracting parties (debtor and creditor) it must have been "already recognizable at the time of the conclusion of the contract" that a third party needs to be protected.

Legal basis

The derivation of the legal basis for the contract with protective effect in favor of third parties is disputed, although they lead to the same results. The jurisprudence and parts of the literature follow a supplementary interpretation of § 328 paragraph 1 BGB, which regulates the contract in favor of third parties.

Another part of the literature draws on the principles of good faith through § 242 . Since the Law of Obligations Modernization Act was passed , Section 311 (3) sentence 1 of the BGB has also been used.

literature

  • Jens Kleinschmidt : Delegation of private autonomy to third parties: Admissibility, procedure and control of content determinations and findings of third parties in the law of obligations and inheritance law , Mohr Siebeck, Tübingen 2014, Bucerius Law School, habilitation thesis, Hamburg 2012, ISBN 978-3-16-152527-8 .
  • Yvonne van Eickels: The third-party protection effect of contracts , Nomos, Baden-Baden 2005, University of Passau, dissertation 2004, ISBN 3-8329-1221-5 .
  • Antonios Karampatzos: From contract with protective effect for third parties to criminal, professional liability: at the same time a contribution to the replacement of pure financial losses caused by negligence , Nomos-Verlagsgesellschaft Baden-Baden 2005, ISBN 3-8329-0978-8 .

Individual evidence

  1. ↑ BGH NJW 1978, 883; Palandt § 328, marginal no. 18th
  2. ↑ a b Munich commentary on the BGB, editor: Peter Gottwald : § 328 BGB, marginal no. 191.
  3. ↑ BGHZ 49, 350, 354; Palandt § 328, marginal no. 17th
  4. ↑ BGHZ 51, 90, 96.
  5. ↑ Palandt § 328, Rn. 17a.
  6. ^ Munich commentary on the BGB, editor: Peter Gottwald : § 328 BGB, marginal no. 187.
  7. ↑ BGHZ 56, 269, 273
  8. ↑ Dirk Looschelders : Law of Obligations General Part . 13th edition. Marg. 160 .
  9. ↑ Palandt § 328, Rn. 15th
  10. ↑ Dirk Looschelders: Law of Obligations General Part . 13th edition. Marg. 162 .

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