Fidelity

from Wikipedia, the free encyclopedia

Fidelity is the damage which a party arises from the fact that they are (falsely) on the right effectiveness of an invalid legal transaction or an invalid declaration familiar.

Legal situation in Germany

The amount of fidelity is based on the so-called negative interest of the business party entitled to compensation. This corresponds to the effort that is necessary to restore the condition that would have occurred if the circumstance that required replacement had not occurred (hence the term negative interest) ( Section 249 BGB). In such cases, it is not the invalidity of the legal transaction or the declaration, but the false reliance on the validity that constitutes the circumstance that is obligatory to replace would have trusted the explanation.

In addition to the fidelity, there is also a performance loss , which is measured according to the so-called positive interest (interest of the obligee in the proper -  i.e. positive - fulfillment of the obligation ). Since the positive interest ( § 249 BGB) also includes any lost profit ( § 252 BGB), the positive interest is usually higher than the negative interest (but not always; cf. § 122 Paragraph 1 aE BGB).

As an exception, the claim for damages in special cases is limited by the positive interest, in particular according to § 122 Paragraph 1 BGB and § 179 Paragraph 2 BGB. The positive interest (the claim for damages for performance) thus caps the fidelity damage to be replaced. In such cases, the claimant should not be in a better position than he would be if the original contract had been properly fulfilled.

Legal situation in Switzerland

In Swiss law, a distinction is made between performance damage and fidelity damage. The law describes fidelity damage as “damage resulting from the failure of the contract”. Compensation for damage resulting from the failure of the contract is owed, for example, in the case of contesting errors ( Art. 26 OR), representation without power of attorney ( Art. 39 OR) or withdrawal from the contract ( Art. 109 OR). As in German law, the creditor is basically treated as if he had never heard of the contract. The fidelity thus covers those costs that were made in reliance on the validity of the contract, such as transport and dunning costs as well as useless (frustrated) purchases. However, there are also significant differences to German law: On the one hand, the loss of trust is not limited by the fulfillment interest, which can certainly exceed this. On the other hand, the obligee can also assert the lost profit from a hypothetical third-party transaction, provided that he can only prove that he had to forego a specific closing opportunity due to the contract that has now lapsed.

literature

  • Thomas Ackermann: The protection of negative interest: to link self-binding and sanction in private law , at the same time habilitation thesis University of Bonn 2004, Tübingen: Mohr Siebeck, 2007, ISBN 978-3-16-148823-8 .
  • Michael Bohrer: The liability of the disposition guarantor: a contribution to the teaching of the negative trust liability , at the same time dissertation at the University of Munich 1978/79, Ebelsbach: Gremer, 1980, ISBN 3-88212-014-2 .
  • Gauch, Schluep, Schmid, Emmenegger: Swiss Code of Obligations, general part . 9th edition. tape 2 , margin no. 2899 ff.
  • Huguenin: Law of Obligations General and Special Part . Margin no. 872 ff.
  • Stefanie Seitz: The importance of fidelity insurance in the context of white-collar crime, risk management and compliance , at the same time dissertation at Heinrich-Heine-Universität Düsseldorf 2010, Karlsruhe: VVW , 2011, ISBN 978-3-89952-624-0 .

Individual evidence

  1. ^ Wolfgang Fikentscher: Law of Obligations. Walter de Gruyter, 1997, ISBN 978-3-11-015498-6 , p. 303. limited preview in Google book search
  2. ↑ cf. SJ 1975, pp. 1 ff E. 4: “  La partie qui invalide le contrat en invoquant son ereur ou le dol de l'autre partie a droit à l'intérêt négatif (ATF 47 II 188 consid. 5), c'est -à-dire qu'elle peut exiger d'être réintégrée dans la situation patrimoniale où elle se trouverait si le contrat n'avait pas été conclu.  »
  3. ↑ cf. SJ 1975, p. 1 ff E. 4: “  Mais l'intérêt négatif comprend aussi le dommage que subit le lésé du fait que, confiant dans la validité du contrat, il a laissé échapper l'occasion d'en conclure un autre.  »