Contract in favor of third parties

One of debt contract , the under inter partes effect principle, only the Contracting Parties binds , can by means of corresponding agreement of exception to a third-party beneficiary (ZD) are designed. The type of contract is characterized by the fact that the debtor has to provide the performance owed to a third party and not to his contractual partner ( obligee ).

The contract in favor of third parties is regulated in § 328 BGB . It is not itself the basis for a claim, it results from the right of claim on which the contractual agreement is based.

German legal circle

Real contract in favor of third parties

Section 328 (1) of the German Civil Code (BGB) provides that a service to a beneficiary third party can be stipulated by contract with the effect that the third party directly acquires the right to demand the service. The standard regulates the so-called “real contract in favor of third parties”. This basically consists of three legal relationships: that between the debtor (promise) and the third party, in the cover relationship that between the debtor and the creditor (recipient of the promise) and in the currency relationship ( benefit ratio ) that between the obligee and the third party. It is inherent in this contract constellation that the third party has its own right to claim.

In case of doubt, whether the third party should actually acquire his own right to claim is to be determined through interpretation via Section 328 (2) BGB ( Section 133 , Section 157 BGB). Special rules of interpretation for the assumption of performance and the annuity contract are contained in Sections 329 and 330 BGB. The third party entitled to claim may acquire the right to benefit and can invoke possible claims for damages in the event of disruptions in performance . However, he does not regularly acquire a claim for damages instead of the performance ( § 281 BGB) - nor does he have his own right of withdrawal . The creditor (promise recipient), unlike the debtor (promise), instead usually acquires a benefit claim from the third party.

Fake contract in favor of third parties

However, there are also contracts in favor of third parties in which the third party does not acquire its own right to claim. The debtor is only authorized to make payments to the third party with a discharging effect. The right to demand performance does not belong to the third party, but only to the obligee. This contract is also known as a bogus contract in favor of third parties.

Contract with protective effect in favor of third parties

The contract with protective effect in favor of third parties represents a special case . Within the framework of this contract, the third party has no claim of his own against the prominent person, but is only covered by the (protective) effect of the contract. A typical example is the lease, in which z. B. the children have the rights under the rental agreement of the parents (or one of the parents) with the landlord. The legal basis for this contract is disputed. The overwhelming opinion sees it as a sub-section of § 328 BGB.

Disposal in favor of third parties

A disposition in favor of a third party that a third party directly acquires a right is generally not permitted. This legal consequence results from § 333 BGB. Otherwise the danger of Danaer gifts would be too great. A permissible disposition in favor of third parties is regulated in the BGB in § 423 BGB for the decree that cannot be disadvantageous for the beneficiaries.

This does not affect subscription rights from insurance contracts , in particular life insurance policies , which are intended to take effect in the event of the death of the policyholder.

Contract at the expense of third parties

A contract at the expense of a third party in which someone is obliged who was not involved in the legal transaction is inadmissible and ineffective.

literature

Walter Bayer : The contract in favor of third parties. Mohr Siebeck, Tübingen 1995, ISBN 3-16-146388-9 .
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 .
Staudinger Commentary on the Civil Code, Book 2, Law of Obligations, Sections 328-345: (Contract in favor of third parties, extra, contractual penalty) / Manfred Löwisch [Red.]; Rainer Jagmann [arr.]; Volker Rieble [arrangement] , de Gruyter, Berlin 2009, ISBN 978-3-8059-1032-3 .
Fabian Wall: The value ratio of the contract in favor of third parties in the event of death - a legacy of claims: reconsiderations following the "decision of the century" BGHZ 156, 350 ff. And the "Act on the Protection of Retirement Provisions" , Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150448-8 .