Pacta sunt servanda
Pacta sunt servanda ( Latin ; dt. Contracts are to be observed ) is the principle of contractual loyalty in public and private law .
It is the most important principle of both public and private contract law . In German civil law, the general principle of the obligation to fulfill contractual obligations - and thus also of legally effective agreements - can be found in Section 241 (1) of the BGB . One of the most important developments of this principle can be found, among other things, in the offense of good faith , which is regulated in § 242 BGB. The principle states that whoever breaks contracts is acting unlawfully / unlawfully . Furthermore, the principle of contract loyalty by virtue of customary international law applies , in which it states in the theoretical dispute about the question of the binding nature of international treaties that national laws must not be the basis for non-compliance.
In principle also have oral contracts concluded binding, so that the subject can still be forced to fulfill the contract as well.
history
The sentence itself does not come from Roman law . In Roman law of the classical period (1st to 3rd century AD) a binding and therefore actionable contract was only created if the consensus of the parties was clothed in one of the recognized contracts. The opposite of the actionable contract (contractus) was the informal and therefore un actionable pactum . They could only be asserted within the framework of a pactum adiectum (subsidiary agreement) - i.e. a pactum, which was concluded as an additional agreement to a contract that required a form, such as a stipulatio - and only in the case of bona fides claims. The numerus clausus of actionable contracts was only gradually expanded and it was not until the Middle Ages that canon law developed the principle “pacta sunt servanda” for religious reasons. The first written confirmation can be found in the Liber Extra Gregory IX. The principle should express that informal agreements (pacta nuda) are also legally binding and not just the contractūs of Roman law.
The actionability of all informal promises soon raised new problems, since contracting parties inexperienced in business now seemed less protected from ill-considered business deals. The Causa theory was used as a new delimitation criterion for a serious willingness to contract. The validity of a contract should not be judged by the form but by the purpose for which an agreement was concluded.
See also
literature
- Peter Landau : Pacta sunt servanda. On the canonical foundations of private autonomy. In: Mario Ascheri u. a .: "Thrown into the water and oceans crossed". Festschrift for Knut Wolfgang Nörr. Cologne [u. a.] 2003, pp. 457-474.
- Marc-Philippe Weller : The loyalty to the contract - binding contract, principle of fulfillment in kind, loyalty to performance. Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-149683-7 .
Web links
Individual evidence
- ↑ Stephan Meder, Rechtsgeschichte , 4th ed., Böhlau, pp. 162–163.
