Representation (Germany)

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Representation (often for short: representation ) means in civil law the legal transaction of a person who acts as a representative for another person, the person represented , according to §§ 164 ff. Of the German Civil Code (BGB). Since Section 164 (1) of the German Civil Code (BGB) stipulates that a declaration of intent made by the representative has direct effect on the person represented, the legal consequence of the conclusion of a contract thus occurs directly with the person represented (so-called direct representation). An effective representation requires that the representative has been authorized by the person represented to carry out the legally binding act towards third parties .

Representation is required in cases in which the person represented is either unable or unwilling to engage in legal transactions. The reasons for this can be legal in nature, e.g. As a result of incapacity of the minor child , that of his legal representatives (parents) in accordance with § 1629 I in conjunction with § 1626 BGB is represented or due to actual circumstances of daily commerce, for example, because of labor business organization in which an employee is authorized shops for his employer as well as in the case of a lack of expertise on the part of the person represented who, as a legal layperson , can be represented by a lawyer in a process when a settlement is reached .

Legal dogmatic derivation

The prevailing opinion today bases the legal institution of representation on the so-called principle of representation , according to which, in the case of legal transactions, the basis is solely based on the action and knowledge of the representative, who represents his principal both in will and in the declaration ( Section 166 (2) BGB ). The representative makes an external declaration for the person represented who does not actively "act" in legal transactions. Only the legal effects of the business affect the person represented. The opposite view can be found in the so-called boss theory , which for its part states that only the person represented forms a legal will and is to be regarded as a legal agent, while the representative only acts as an intermediary.

Requirements for effective representation

Admissibility of representation

In principle, representation is permitted for every legal transaction. Exceptions to this principle can only be found in highly personal legal transactions . This concerns, for example, the marriage , § 1311 S. 1 BGB or the will , § 1937 BGB. This applies analogously to acts similar to legal transactions , such as reminders .

Own declaration of intent of the representative

The so-called principal , who is responsible for the legal consequences of the transaction, does not undertake his own legal transaction; instead, his representative makes his own declaration of intent, i.e. In other words, it forms the will to do business itself and expresses it in the form of a declaration of intent . If, on the other hand, a foreign declaration of intent is given, there is no representation, but a message . Since the consequences of the action taken affect the person represented and not the representative, it is sufficient if the latter has limited legal capacity ( Section 165 BGB); An incapacitated person, on the other hand, cannot act legally himself, so he cannot be a representative.

If the representative makes a declaration of intent, one speaks of active representation ( § 164 I 1 BGB); he accepts it from a third party, from passive representation ( § 164 III BGB).

If knowledge of certain circumstances is decisive for the legal transaction carried out by the representative, then the knowledge of the representative must generally be used. One speaks of knowledge attribution ( § 166 I BGB), because the very knowledge that the representative has of the relevant circumstances is attributed to the person represented. However, the law recognizes an exception to this principle ( Section 166 II 1 BGB): If the representative acts on the basis of a specific instruction from the principal , the knowledge of the person represented is decisive.

Obviousness of representation

The representative acts in the name of someone else, namely in the name of the person represented. In order to protect the business partner, i.e. the third party, it must be evident that his actions are related to third parties. However, it is not necessary that the external relationship is expressly declared, provided that this is implied by the circumstances ( § 164 I 2 BGB). In addition to protecting the business partner, this so-called principle of obviousness also serves the general interest of legal transactions in legal clarity within the contractual relationship. Obviousness is to be assessed by interpreting the legal transaction based on the (objective) recipient horizon: The only decisive factor is how an objective third party in the role of the recipient of the declaration was allowed to understand the declaration of intent.

An exception to the principle of disclosure is generally made in a so-called "business for whom it concerns" . These are everyday cash transactions that are processed immediately and in which the third party therefore does not care who his business partner is.

Power of representation

Furthermore, the representative must act within the framework of the power of representation granted to him .

The power of representation is either a so-called power of attorney issued by a unilateral legal transaction ( § 166 II 1 BGB) or a legally granted power of representation (e.g. the parents for their child, § 1629 I in conjunction with § 1626 BGB; carers for people with disabilities / mental or physical illnesses that can no longer take care of their own affairs, § 1902 BGB). In the latter case, one also speaks of a legal representative of the child or the carer.

Legal persons and jointly-owned companies , as purely legal entities, are also incapable of acting themselves and must therefore always be represented by one of their bodies in legal transactions . One speaks here of organizational representation . The question of which body or which partner is authorized to represent is regulated by law in these cases. B. in § 26 I 2 BGB for the association.

Internal and external relationship

When it comes to representation, a distinction is made between the so-called internal and external relations.

The internal relationship (also known as the basic relationship) describes the relationship between the representative and the person represented, while the external relationship is the relationship between the representative and business partner (the "third party").

The basic relationship and the power of attorney are two legal transactions that do not depend on one another. Therefore they must be viewed separately from one another; in this sense they are “abstract”. For example, a power of attorney can also be effective if the contractual relationship on which it is based (such as an employment contract or an order ) is ineffective or if it has expired. The power of attorney continues to apply regardless of this until it has been revoked. However, according to Section 168 of the German Civil Code (BGB) an expiry of the power of attorney is assumed even if the basic relationship has expired through revocation or termination (Section 671 of the German Civil Code). The power of attorney must then be returned to the principal in accordance with Section 175 BGB.

Grant

The power of attorney is granted in the form of a non-formal declaration of intent that must be received; it does not require any acceptance.

The recipient of such a declaration can be the person who is supposed to represent the declaring party (the authorized representative) or the third party against whom the representation is to take place. In the first case one speaks of an internal power of attorney ( § 167 I Alt. 1 BGB) in the latter of an external power of attorney ( § 167 I Alt. 2 BGB).

In principle, the granting of power of attorney is informal ; it can therefore also be granted by conclusive action ( implied ). In exceptional cases, the law expressly stipulates a special form, e.g. B. in commercial law with the power of attorney , a special power of attorney for merchants ( § 48 I HGB).

If the proxy makes a mistake in the granting, the general rules regarding nullity and contestation apply. Problems arise if the power of attorney has already been used. The main disputes here are whether a challenge is even permissible and, if so, whether it has an ex-tunc or ex-nunc effect and who is the right opponent to challenge.

Duration of effect / legal liability

In favor of a third party worthy of protection there are some regulations in BGB, which under certain conditions allow an already expired power of attorney to continue to act, i.e. standardize legal liability. If an external power of attorney has been validly issued, restrictions and amendments as well as the expiry of the power of attorney must be reported to the third party. If this does not happen, the power of attorney applies to him as continuing ( § 170 BGB).

According to § 171 BGB, the third party is also protected in his trust in the existence of a power of attorney if this was made known to the third party by special notification or by public announcement to an indefinite group of people. Unlike in the case of Section 170 BGB, the validity of the power of attorney is not assumed.

Also § 172 BGB provides the protection of the warrant liability, provided that an already handed out to the representative power of attorney was submitted to the third party. The power of attorney only expires when the document is returned to the principal ( Section 175 BGB) or when the document is declared invalid ( Section 176 BGB), at the same time the protection of the third party ends. Furthermore, the protection of trust no longer applies as soon as the third party receives the revocation of the power of attorney by the principal.

The third party is not worthy of protection in the cases of Sections 170–172 BGB (German Civil Code) in accordance with Section 173 BGB if the third party is in bad faith. In addition, this protection does not apply if insolvency proceedings are opened ( Section 117 InsO).

The regulation in § 174 BGB takes into account the fact that unilateral legal transactions that are carried out by a representative without power of representation are fundamentally inadmissible and grants the business partner the right to request the submission of the power of attorney and to reject the transaction immediately should the claim be made not be complied with.

Going out

Unless otherwise contractually agreed, the power of attorney generally expires in accordance with Section 168 sentence 1 BGB upon termination of the basic relationship, i.e. the legal relationship between the representative and the person represented on which the representation is based. This can be an order or an employment relationship in which the representative was active.

The power of attorney can of course also be granted for a limited period from the outset ( Section 163 BGB) or subject to a dissolving condition within the meaning of Section 158 II BGB, so that either the expiry of the period or the occurrence of the condition leads to the expiry of the power of attorney.

Furthermore, the power of attorney can expire through revocation ( § 168 S. 2.3 BGB). The revocation, like the granting of power of attorney, is a unilateral legal transaction , i.e. it is effected by a unilateral declaration of intent that requires receipt . According to § 168 S. 3 BGB, the regulations of § 167 I BGB apply, i. This means that the principal can declare the revocation to both the authorized representative and the third party. The power of attorney expires in both cases. As a rule, a power of attorney is freely revocable, as it would speak against the interests of the person represented if he were e.g. B. would have to be represented by a person who no longer enjoys his trust. However, the irrevocability of the power of attorney can be contractually stipulated. In addition, it can also result from the basic relationship ( § 168 sentence 2 BGB) that the representative also has an interest in the existence of the power of attorney, so that this also results in irrevocability. However, as soon as the irrevocability restricts the economic freedom of the person represented, there is a case of immorality within the meaning of § 138 BGB. However, if there are important reasons, an irrevocable power of attorney can also be revoked as an exception.

In the event of death or the occurrence of the incapacity of the principal, the authorization shall not expire in doubt what made the arrangements for the contract ( § 672 S. 1 , § 675 is closed BGB). However, if the representative's death or legal incapacity occurs, the contract (cf. § 673 sentence 1 BGB) and thus the power of attorney also expire .

Abuse of the power of representation

Transactions carried out by the representative for the person represented also develop effects if the representative acted within the framework of the power of representation but outside of the instructions given internally . This serves to protect the business partner who trusts in the existence and scope of the power of attorney and from whom, in principle, is not expected to investigate the internal relationship. The third party is not worthy of protection in two cases:

  • The legal transaction is concluded by representatives and third parties with the premise of damaging the person represented (so-called collusion ). In such a case, the third party is not worthy of protection and the closed transaction is void due to immorality in accordance with Section 138 I BGB .
  • The third party is in bad faith, i.e. either has positive knowledge of the exceeding of the powers granted in the internal relationship or this exceeding is so obvious that he should have known about it.

Prohibition of self-dealing

As a self-dealing refers to a transaction that a person , carries with itself the law distinguishes two cases. The self-contracting refer to operations made by the representative on behalf of his principal with himself.

In the so-called multiple representation, the representative concludes a transaction on behalf of the person represented with himself on behalf of a third party.

In principle, self-dealings are ineffective according to § 181 BGB . However, it is generally assumed that they can be approved by the principal in accordance with Section 177 of the German Civil Code (BGB ) . Exceptionally, such transactions are also effective if the execution is permitted by law, in particular because it only results in the fulfillment of a liability.

Legal consequences of representation

If a representation is effective, the closed transaction works directly for and against the person represented. The legal consequences of the legal transaction do not affect the representative, but exclusively the principal. Errors of the representative within the meaning of §§ 119 ff BGB are also attributed to the person represented ( § 166 I BGB), so that he is entitled to contest and not the person who actually made the declaration of intent.

The lack of a prerequisite for the effectiveness of the representation, this can have various consequences.

  • If the proxy is not known to the public, the representative is dealing with his own account, as the avoidance of an error in such a case is excluded according to § 164 II BGB.
  • If, on the other hand, there is no power of representation, the transaction is initially pending ineffective ( Section 177 I BGB). If the representative does not approve the transaction, the regulations on the representative without power of representation shall apply.
  • The legal situation is different in cases in which the representative carries out the business both in the name of the person represented and in his own name; here the consequences hit both people.

Exceptionally, the representative will have legal consequences from the transaction undertaken if he makes himself liable for damages in the pre-contractual relationship from culpa in contrahendo ( § 311 III in conjunction with § 280 I in conjunction with § 241 II ).

Representative without power of representation (falsus procurator)

If the power of representation is missing or if it is exceeded in the external relationship, the provisions of §§ 177 ff BGB apply .

Multi-sided legal transactions

Multi-sided legal transactions are initially ineffective and can be approved by the business owner ( Section 177 I BGB). The business owner can declare approval both to his representative and to the contractual partner (cf. § 182 I BGB). If the approval is refused, the contract is finally ineffective.

Unilateral legal transactions

In principle, unilateral legal transactions carried out by a representative without power of representation are invalid according to § 180 sentence 1 BGB. Exceptionally, however, these transactions can also be approved by the person represented ( Section 180 p. 2, 3 BGB).

Third party rights during the suspension period

As long as the validity of the transaction is still pending, the third party can revoke the transaction in accordance with Section 178 of the German Civil Code (BGB) (by making a declaration to the representative or the person represented) or request the principal in accordance with Section 177 II of the BGB to express his approval. The result of the request is that the declaration by the principal can only be made to the contractual partner and a two-week period begins, after which the approval is deemed to be refused. In addition, any declaration of approval that the principal has given his representative up to the request becomes ineffective, unless the third party had knowledge of this declaration.

Claims of the third party against the representative without power of representation

The third party who has trusted that the transaction is valid has a claim against the representative without power of representation from § 179 I BGB to fulfillment of the contract or to compensation, whereby he can choose between the two alternatives. The performance damage is to be compensated within the scope of the compensation .

If the representative is not aware at the time of the conclusion of the transaction that he is acting without power of representation, he is only obliged to compensate the loss of fidelity up to the amount of the loss of performance according to § 179 II BGB .

The claims of the third party do not apply according to § 179 III BGB, if the third party is not worthy of protection in its trust in the effectiveness of the business. Such a case exists if the third party was aware of the lack of power of representation or if, under the circumstances, he should at least have doubted it. Furthermore, a representative with limited legal capacity is more worthy of protection than the third party, unless the representation took place with the consent of the legal representative.

Types of Powers

A distinction can be made between different types of legally granted power of attorney.

Differentiation according to the scope of the power of attorney

  • The general power of attorney is a power of attorney that authorizes the representative in general, i.e. to carry out all business in which representation is permitted.
  • The special power of attorney refers to a power of attorney that is limited to carrying out a specific transaction.
  • The generic power of attorney authorizes the representative to carry out all those transactions that belong to a certain category of transactions.
  • Finally typed forms of power, whose scope is defined by law, there are about to commercial law , the attorney ( § 48 HGB) and the proxy ( § 54 HGB).

Differentiation according to the group of authorized representatives

  • The individual power of attorney is issued by the principal to a sole authorized representative.
  • On the other hand, a general power of attorney empowers several authorized representatives for only one representative for joint representation.

Differentiation according to the principal

  • The power of attorney given by the principal to the proxy is referred to as the main power of attorney.
  • If the proxy in turn grants a power of attorney to another person, this is called a sub- power of attorney . The principal must authorize his representative to use sub-authorization. This authorization is to be assumed as given if there is no recognizable interest on the part of the principal in a personal perception by the authorized representative. A distinction must be made between two subcases:
    • If the representative grants the sub-power of attorney in the name of the principal, this power of attorney also applies directly to the latter.
    • However, if the sub-power of attorney is granted in the representative's own name, it only has an indirect effect (namely through the main representative) for the principal.

special cases

Isolated power of attorney

One speaks of an isolated power of attorney if the power of attorney is not based on a contractual relationship. So there is no basic relationship, but only a power of attorney between the representative and the person represented.

Power of attorney

Furthermore, the case of legal authority developed by the case law is important. These are cases in which there is neither a legal nor a contractual power of attorney from the outset, but the third party with whom the transaction is concluded may assume that such is given due to the situation presented to him.

In addition to the lack of an actual power of attorney, the prerequisites for accepting a legal authorization are that the trust of the third party is not already protected by Sections 171 to 173 of the German Civil Code (BGB) and that the person represented has given legal authorization, whereby two variants must be distinguished:

  • In the case of the proxy power of attorney , it is required that the person represented had no knowledge of the actions of the alleged representative, but could have recognized and prevented this with due diligence.
  • For the acceptance of a tolerance power of attorney , however, it is required that the person represented has knowledge of the actions of the “representative” and tolerates this.

In both cases, the third party must actually have relied on the created legal certificate and used this as the basis for his decision to conclude a transaction. If the trust of the third party was the cause of the transaction, the legal consequence is, according to prevailing opinion , provided that all other conditions are also met, that a power of representation is assumed.

Delimitations

Real files

In real file it not about transactions , so that a representation is not possible.

Business-like acts

Business-like actions are actions that are not declarations of intent, but are very close to them, as they are regularly aimed at establishing a legal consequence. The rules for substitution are accordingly applicable here.

Message

Subconsciously wrong transmission Deliberately wrong transmission
delivery boy The principal is bound by a false declaration, but can contest it (grounds for contestation of § 120 BGB) Declaration of intent is not binding for the principal
Representative § 166 IBGB: There must be an error in the person of the representative, as he is making his own declaration of intent

If a messenger gives someone else's declaration of intent, this is not a substitute. Representation requires the delivery of its own declaration of intent, but the messenger only transmits a third-party declaration of intent already issued by another for the purpose of access to the addressee. This has u. a. the result that the messenger z. B. does not have to be legally competent, since the simple transmission is not a legal transaction. Further consequences can be found in the area of ​​incorrect transmission as well as the receipt and access of a declaration of intent, but also in other areas.

Trading under someone else's name

If one speaks of “acting under a foreign name”, such cases are meant in which the agent merely uses a foreign name without being in any way authorized to represent the true bearer of this name. Whether and against whom a transaction concluded in this way works depends crucially on how the recipient of the declaration was allowed to understand the agent's declaration.

The acting person is dealing with his own business if he wants to conclude the deal for himself and his business partner understands it that way ( name deception ).

On the other hand, there is a third-party transaction for the true bearer of the name if it is important to the contractual partner to conclude the transaction with the very person who is the person who pretends to be the person acting ( identity deception ). This third-party transaction only has effects for and against the true bearer of the name if he approves it analogously in accordance with Section 177 of the German Civil Code (BGB) or if the transaction must be attributed to him in accordance with the principles of tolerance and proxy authorization. Otherwise, the deceived business partner can only stick to the agent, whereby the regulations on representatives without power of representation are to be applied accordingly.

Indirect representation

If someone acts legally in his own name, but with the intention of representing someone else, one speaks of indirect representation. This is a misleading designation, as it is not a representation: Those who do the business in their own name are affected by the legal consequences, while the supposedly represented person has no legal relationship with the third party. Cases of indirect representation is about the commission sale of § 383 I HGB and the fiduciary trust .

Knowledge Representative

The knowledge representative is equated with the legal representative with regard to knowledge of certain circumstances giving rise to a claim, for example the defectiveness of a purchased item. His knowledge is attributed to the business owner analogously to § 166 BGB.

Application of §§ 164 ff BGB reason
Real files No: no substitute no legal transactions
Business-like acts Yes: analog use no legal transactions, but very similar to these, as both contain an expression of will
Message No: no substitute no own declaration of intent
Trading under someone else's name in principle no representation, but approval by name bearer possible Power of representation is missing
Indirect representation No: no substitute no acting on behalf of someone else, only in the interests of someone else
Knowledge Representative § 166 BGB analogous acts like a representative for the principal

See also

Web links

In-depth literature

  • Hans Brox , Wolf-Dietrich Walker : General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 508-607).
  • Stefan Klingbeil, deputy as a general legal institute - on theory, dogmatics and scope of the principle of representation. In: Journal for the Entire Private Law Science 2020, pp. 150–188.
  • Johannes Wertbruch : BGB general part . Publishing house CH Beck. 2nd Edition. Munich. 2012, ISBN 978-3-406-63812-1 (8th chapter).
  • Achim Bönninghaus: Legal business theory II. General requirements for the effectiveness of legal transactions . 2008. CF Müller publishing house, Hüthig Jehle Rehm GmbH publishing group. Heidelberg, Munich, Landsberg, Berlin, ISBN 978-3-8114-7011-8 (2nd part A. Rn. 13-47 and 3rd part A. Rn. 87-89).
  • Helmut Köhler : BGB general part. 36th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-63798-8 (2nd chapter, § 11).
  • Roy Dörnhofer: The business for whom it concerns , juraexamen.info (accessed on July 3, 2017).

Individual evidence

  1. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (preliminary remark to § 164 marginal number 67); Volker Beuthien : On the theory of representation in civil law. In: Volker Beuthien and others: Festschrift for Dieter Medicus on his 70th birthday . Heymann publishing house. Cologne. 1999, ISBN 3-452-24140-8 (p. 2); Stefan Klingbeil: Representation as a general legal institution - on theory, dogmatics and scope of the principle of representation. In: Journal for the whole of private law studies 2020, p. 150 (153 ff.).
  2. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 Rn. 1); Stoffels in: Thomas Heidel u. a. (Ed.): Nomos Commentary on the BGB . Volume 1. 2nd edition. Baden-Baden. 2012 (Section 164 marginal number 47).
  3. ↑ Heinz-Peter Mansel in: Othmar Jauernig (Greetings): Civil Code: BGB. 15th edition. Publishing house CH Beck . Munich. 2012, ISBN 978-3-406-65246-2 (§ 164 marginal number 13)
  4. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 marginal number 14).
  5. ↑ BGHZ 36, 30, 33 - "Idealheimfall".
  6. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 ( § 164 Rn. 48f ); Dieter Medicus, Jens Petersen: Civil law. A presentation for exam preparation, arranged according to the requirements. 23rd edition. Vahlen publishing house. Munich. 2011, ISBN 978-3-8006-3908-3 (No. 90).
  7. ↑ BGH, judgment of 25 March 2003 - XI ZR 224/02 = BGHZ 154, 276, 279 - a counter transaction is not a business for whom it may concern.
  8. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (preliminary remarks on §§ 164-181 BGB marginal number 7 ff ).
  9. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 marginal number 96).
  10. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 marginal number 97).
  11. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 167 Rn. 4); Stoffels in: Thomas Heidel u. a. (Ed.): Nomos Commentary on the BGB . Volume 1. 2nd edition. Baden-Baden. 2012 (§ 164 marginal number 79); BGH, judgment of December 5, 2006 - XI ZR 341/05 = BKR 2007, 244, 246.
  12. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 167 Rn. 15).
  13. ↑ Jürgen Ellenberger in: Peter Bassenge u. a. (Ed.): Palandt . Civil Code. With subsidiary laws . Publishing house CH Beck. Munich. 71st edition. 2012, ISBN 978-3-406-61604-4 (§ 167 Rn. 3).
  14. ↑ Hans Brox , Wolf-Dietrich Walker : General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 574); Opposite view by: Johannes Wertbruch : BGB general part . Publishing house CH Beck. 2nd Edition. Munich. 2012, ISBN 978-3-406-63812-1 (§ 30 marginal numbers 1–6).
  15. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 marginal number 115); BGH NJW 1966, 1911.
  16. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 marginal number 107); BGH NJW 1989, 26 f; RGZ 136, 360.
  17. ↑ Hans Brox, Wolf-Dietrich Walker: General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 581f); Jürgen Ellenberger. In: Peter Bassenge u. a. (Ed.): Palandt. Civil Code. With subsidiary laws . Publishing house CH Beck. Munich. 71st edition. 2012, ISBN 978-3-406-61604-4 (§ 164 marginal number 14); BGH, judgment of January 30, 2002 - IV ZR 23/01 = NJW 2002, 1497, 1498.
  18. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 181 Rn. 11).
  19. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 181 Rn. 14).
  20. ↑ Jürgen Ellenberger. In: Peter Bassenge u. a. (Ed.): Palandt. Civil Code. With subsidiary laws . Publishing house CH Beck. Munich. 71st edition. 2012, ISBN 978-3-406-61604-4 (§ 181 Rn. 22).
  21. ↑ Hans Brox, Wolf-Dietrich Walker: General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 546-548).
  22. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 164 marginal number 74).
  23. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 167 Rn. 46).
  24. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 167 Rn. 54); BGHZ 189, 346, 352 f, Rn. 16.
  25. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 167 marginal number 47); BGHZ 189, 346, 352, Rn. 15 .
  26. ↑ Karl-Heinz Schramm in: Franz J. Säcker, Roland Rixecker (ed.): Munich commentary on the BGB . Volume 1. 6th edition. Publishing house CH Beck. Munich. 2012, ISBN 978-3-406-61461-3 (§ 167 Rn. 74); BGHZ 86, 273, 275.
  27. ↑ Hans Brox, Wolf-Dietrich Walker: General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 513).
  28. ↑ Hans Brox, Wolf-Dietrich Walker: General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 518-523).
  29. ↑ Hans Brox, Wolf-Dietrich Walker: General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 528 ff.).
  30. ↑ Hans Brox, Wolf-Dietrich Walker: General part of the BGB . Publisher Franz Vahlen. 36th edition. Munich. 2012, ISBN 978-3-8006-3976-2 (Rn. 515).