Breach of contract

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Under a breach of contract (also: breach of contract ; English breach of contract , repudiation ) are understood in contract law , the violation of a from a contract resulting primary or secondary obligation .


The legal principle according to which contracts are to be observed ( Latin pacta sunt servanda ) requires the contracting parties to fully comply with the mutual contractual conditions ( general contractual conditions and individual agreements ) ; it is the basic principle of the right to disrupt performance . According to the principle of good faith ( § 242 BGB ), anyone who breaks contracts is acting unlawfully . Anyone who breaks a contract commits a breach of contract. These principles apply to contracts under private law , public law contracts and international contracts .

Breach of contract and breach of contract are mostly treated as synonyms in legal literature . A breach occurs when there is a party with no legal basis fails or refuses to mature services to be provided under the contract. Sometimes the breach of contract - as a higher degree of breach of contract - is viewed as the breach of contract that unlawfully dissolves the contract or makes it appear dissolved because the essentials that make up the existence of the contract have been attacked. According to this doctrine, default is a breach of contract, while refusal to perform ( repudiation ) is a breach of contract. If the employee refuses to work from the outset under labor law ("persistent refusal to work "), the Federal Labor Court (BAG) speaks of a breach of contract.

Legal issues

In private law, breaches of contract are all defaults in performance such as default of payment , poor performance or non-performance . With these breaches of duty , a debtor acts differently than what is contractually prescribed for him by the contractual relationship . If the debtor is in arrears, the debtor falls behind with his due performance (either in the event of a delay in delivery or a delay in payment ). The bad performance concerns the inadequate performance of a contract. Non- performance occurs when the debtor fails to provide the performance owed due to impossibility . These breaches of an obligation to have § 280 always result in the para. 1 BGB creditors damages may demand. The damage assessment takes place in accordance with § § 249 ff. BGB. In the event of poor performance, the buyer can also request subsequent performance (removal of the defect or delivery of a defect-free item) in accordance with Section 437 No. 1 BGB, Section 439 Paragraph 1 BGB, reduce the purchase price or withdraw from the contract instead of compensation .

The positive breach of contract (pVV), which was valid until December 2001, concerned all culpable defaults in performance, which were neither caused by impossibility nor by default of the debtor. Actions (such as the violation of secondary obligations, behavior contrary to the contract) or omissions (insufficient information , breach of obligations ) were considered positive breaches of contract . The modernization of the law of obligations in Section 280 (1) of the German Civil Code (BGB ) now regulates the new basic fact for defaults in performance, according to which the debtor who violates an obligation from the contractual relationship must compensate the obligee for the resulting damage if he is responsible for the violation of obligations. Since January 2002, this new regulation has also included cases in which pVV was previously applied.


In Switzerland , as in Germany , Art. 97 OR regulates possible cases of breach of contract under civil law. The terms breach of contract or breach of contract are unknown to the OR (like the BGB). The invalidity of the contract with impossible performance is still valid today in Switzerland and Austria (cf. Art. 20 OR and § 878 ABGB ). This goes back to the teaching of Friedrich Mommsen and Bernhard Windscheid : If the performance is already impossible for everyone when the contract is concluded, according to the Roman teaching ( Latin impossibilium nulla obligatio ) a contract is always void. In Austria , Section 918, Paragraph 1 of the Austrian Civil Code (ABGB ) regulates if a paid contract is either not fulfilled by one part at the appropriate time, in the appropriate place or in the stipulated manner, the other contracting party either demands performance and compensation for the delay or stipulates an appropriate one Deadline for catching up can declare withdrawal from the contract.

The French Code civil ( Art. 1184 Code civil, cf. also Articolo 1453 Codice civile ) is the model for the regulation of breaches of contract in the legal systems of the Romance legal system . A breakdown of the possible breaches of contract is unknown here, rather there is only the uniform fact of non-fulfillment of the contract ( French nullité ):

“The condition résolutoire est toujours sous-entendue dans the contrats synallagmatiques, pour le cas où l'une des deux parties ne satisfera point à son engagement.
In ce cas, le contrat n'est point résolu de plein droit. […]
La résolution doit être demandée en justice […]. »

“The dissolving condition is tacitly assumed in all bilateral contracts in the event that one of the two parties has failed to fulfill its promise.
In this case, however, the contract is not dissolved by virtue of the law. [...]
The revocation must be sought in court [...]. "

Constructively, however, the contract is tied to the condition that both sides fulfill their obligation. If this condition does not occur, the other side has the choice to demand fulfillment or termination of the contract. Both are done by filing a lawsuit. However, it is at the discretion of the judge whether the breach of contract leads to the immediate cancellation of the contract; In doing so, he particularly takes into account the fault and the severity of the breach of contract:

“Ce qui importe c'est que le contrat n'assure plus l'utilité économique qu'il poursuivait. »

"It depends on whether the contract is no longer able to ensure the intended economic benefit."

- Philippe Malaurie / Laurent Aynès : Les obligations , 1990, n ° 740

The common law recognizes only a single offense of breach of contract. For this, the debtor is liable for breach of contract ( English breach of contract ), regardless of fault, because the contract is interpreted as guarantees you:

"It is axiomatic that, in relation to claims for damages for breach of contract, it is, in general, immaterial why the defendant failed to fulfill his obligation, and certainly no defense to plead that he had done his best."

- Lord Edmund-Davis : Raineri v Miles , 1981, AC 1050, HL on p. 1086

According to the principles of common law, a contracting party is obliged to provide consideration under a contract if the other party has "essentially" fulfilled its contractual obligations ( English substantial performance ). Then, the consideration is paid, which due to a reduced power compensation ( English damage ) is due. A fundamental breach ( English material breach of contract ), however, does not require anything in return. These measures may include the delayed service ( english delay in performance ). The distinction between the breach of primary duties and secondary contractual duties is alien to common law. The legal consequence of this construction is threefold:

  1. The distinction according to whether the debtor does not pay at all, too late or differently does not matter.
  2. The debtor cannot plead that he or his auxiliary persons cannot be reproached and
  3. a special warranty right for defects is superfluous in common law , since here too there is only liability from breach of contract .

Of course, common law cannot avoid taking into account possible obstacles to performance of the debtor: However, it does not do this in the context of an examination of fault, but the question of the extent to which a guarantee has been accepted at all according to the meaning of the contract. In return, there is basically no entitlement to fulfillment in kind ( specific performance ), but - in accordance with the historical development from the trespass lawsuit (see Action of Assumpsit ) - only to monetary damages.

The CISG treated in Art. 25 CISG, the "fundamental breach" ( English material breach of contract ), the serious particularly breaches must be made. “Substantial” means that the breach of contract brings such disadvantages for a contracting party that it essentially misses what it should have expected under the contract. This consequence must have been foreseen by the party in breach of contract or at least a reasonable third person should have foreseen it. If these prerequisites are met, the buyer (Art. 49 Paragraph 1a CISG) or seller (Art. 64 Paragraph 1b CISG) can request cancellation of the contract or subsequent delivery (Art. 46 Paragraph 2 CISG). In the case of a "major breach of contract", however, it is not only the severity of the defects that is decisive, but rather whether the buyer's interest in performance has essentially ceased due to the weight of the breach . If he can use the purchased item permanently - albeit with restrictions - a major breach of contract will often be denied.

In EU law , Art. 258 TFEU regulates the violation of an EU member state against the obligations under the EU treaty ; the violation is to be determined by the EU Commission . In the subsequent infringement proceedings , both the EU Commission (so-called supervisory action , Art. 258 TFEU) and the EU member states (so-called state action , Art. 259 TFEU) can assert violations of EU law by a member state. The state concerned is given the opportunity to comment . If the state does not comply with this opinion within the deadline set by the Commission, the Commission can refer the matter to the Court of Justice of the European Union . This initiates the infringement procedure which, in accordance with Art. 260 TFEU, forces the state concerned to take measures resulting from the judgment of the Court of Justice.

See also


  • Konrad Zweigert / Hein Kötz: Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, § 36 breach of contract, p. 484-151 .

Individual evidence

  1. Ulrich Huber, Performance Disorders , Volume I, 1999, p. 59
  2. Guenter Heinz Treitel, On the Law of Contract , 2007, p. 832
  3. ^ Fritz Giese, Handbuch der Arbeitswissenschaft , 1930, p. 399
  4. ^ BAGE 35, 179
  5. Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1018
  6. a b c d Konrad Zweigert / Hein Kötz: Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, p. 501-509 .
  7. ^ Code Napoléon, Ed. seule officielle pour le Grand-Duché de Berg . Düsseldorf 1810, p. 498 .
  8. Ingeborg Schwenzer / Pascal Hachem / Christopher Kee, Global Sales and Contract Law , 2012, Rn. 41.34 ff.
  9. Christian Siller, Internationales UN Sales Law , 2009, p. 42
  10. Christian Siller, Internationales UN Sales Law , 2009, p. 42 f.
  11. BGH, judgment of September 24, 2014, Az .: VIII ZR 394/12