Contract sui generis
A contract sui generis ( German treaty of its own kind , even atypical contract called) is in the obligations , a type of contract that is not expressly legally regulated.
General
The service or work contract , for example , as well as the purchase and rental agreement are expressly regulated in the German Civil Code . The license , franchise , factoring or leasing contract , among others, is not regulated .
The contract sui generis corresponds to the innominate contract of Roman law . In the context of freedom of contract , contracts sui generis are fundamentally admissible and legally valid, provided they do not violate legal prohibitions or mandatory law .
Legal issues
While a mixed type contract , e.g. B. a mixed donation , which consists partly of a sales contract, partly of a donation, combines elements of several legally regulated types of forms, a contract sui generis is a deliberately independent type of contract. While in a mixed contract, the applicable legal provisions are taken from the law of the merged contract types the general provisions applicable to the sui generis contract , possibly supplemented by analogous use of appropriate standards for type-like contractual relationships. The leasing contract, for example, of which it is certainly disputed whether it is a mixed contract or a sui generis contract, has elements of both the purchase and rental contracts. The franchise contract, which is sometimes seen as a mixed contract, sometimes in the form of a combination of types, but also as a sui generis contract, is discussed in a similarly controversial manner. There is a similar inconsistency in the classification of the franchise agreement in case law. For a contract sui generis, for example, the case law of the OLG Schleswig stands.
International
In Switzerland , a contract that is not expressly regulated by law is called an Innominat contract . This term includes all contracts that are neither regulated in the special part of the Code of Obligations (Art. 184-551) nor in a special law. The term Innominat contract ( Latin innominatus , "unnamed") is misleading insofar as it does not depend on the lack of legal designation, but on the lack of regulation in the law. Within the Innominat contracts, a distinction is made between mixed contracts on the one hand, and contracts of their own type on the other. Mixed contracts combine elements of the offense of different contract types. A contract of its own type contains at least one element that cannot be assigned to any legally regulated contract type.
The legal situation in Austria largely corresponds to that in Germany. According to case law , the brokerage contract is neither an order nor a service or work contract, but a contract of its own type ( sui generis ).
Web links
Individual evidence
- ↑ Volker Emmerich , JuS 1995, 761 (762).
- ↑ Walther Skaupy, The "Franchising" as a contemporary sales concept , in: DB 1982, 2446 (2447)
- ^ Walther Skaupy, Das Franchise-System , in: BB 1969, 115
- ↑ OLG Schleswig , August 27, 1986, NJW RR , 1987, 220; LAG Düsseldorf, October 20, 1987, NJW 1988, 725
- ^ OGH , judgment of June 11, 1952, business number: 2 Ob 470/52, SZ 25/168; HS 24.530 = JBl. 1994, 404
