Forfeiture (Germany)

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A right is forfeited if a long time has passed since it was possible to assert it (moment of time) and special circumstances arise that make a later assertion appear to be a violation of good faith (moment of circumstance). The objection of forfeiture can lead to the fact that a claim cannot be enforced in court, although it basically exists and has not yet expired.

General

As a rule, the contracting parties make immediate use of their contractual rights ; the contracting parties can expect this from each other. A right is deemed to be forfeited if the person entitled has not asserted it for a long time and the person obliged has prepared himself for it and, after the entire behavior of the person entitled, was also allowed to prepare for the fact that he would not assert the right in the future either . The forfeiture is not legally regulated in German law, with exceptions in special laws (e.g. § 21 Trademark Law ). Rather, its principles were developed from the case law from the general clause of § 242 BGB (good faith). Systematically, it is a case of inadmissible exercise of rights due to contradicting behavior, a so-called venire contra factum proprium .

requirements

In order to accept the forfeiture of a right, three conditions are required:

  • Knowledge or negligent ignorance of the beneficiary of his rights (BVerfGE 32, 305-311, BStBl II 1972, 306, marginal number 24 et seq.) And inaction with regard to the enforcement of the law.
  • Moment of time : A longer period of time must have passed since it was possible to assert the right. What a “longer period” is depends on the circumstances of the individual case. In other words, the moment of time begins - since there are no particularly high requirements in this regard - when the person entitled becomes aware of the circumstances that justify his claim.
  • Circumstances : The obligated party has adjusted to this and was allowed to adjust to the fact that the entitled person would no longer assert his rights due to the fact of trust created. The circumstance is therefore present if the person entitled has remained inactive under circumstances that give the impression that he will no longer assert his right.

The circumstance is present if the obligated party could infer from an objective view from the behavior of the person entitled that he would no longer assert his right. Furthermore, the obligated party, relying on the behavior of the person entitled, must have arranged his measures in such a way that he would suffer an unreasonable disadvantage through the delayed enforcement of the law.

A special and often overlooked Verwirkungsvorschrift is § 15 para. 1 Road Traffic Act (Road Traffic Act) to the compensation claims arising from liability claims in traffic civil law must always be reported within two months against the liable party, since indebted failure threatens the loss of rights.

example

A dentist had waited almost four years to issue an invoice after treatment for no objective reason. The dentist then waited a further three years before bringing his claim for compensation to court. At this point in time, the claim was not time-barred because, in accordance with Section 10 (1) GOZ, receipt of the invoice is exceptionally a prerequisite for payment. The Higher Regional Court Nuremberg admitted to the dentist that there was no legal obligation within which a doctor had to issue his invoices for treatment services. However, it is customary for doctors to bill on a quarterly basis, at the latest at the end of a calendar year. If no invoice is issued, the claims falling under this provision are practically non-statute-barred. Therefore, according to the Nuremberg Higher Regional Court, the patient is particularly worthy of protection against inappropriately late invoices. Forfeiture is possible if the regular limitation period has passed since the time at which the invoice could have been issued. “The moment of forfeiture is therefore fulfilled”.

consequences

The forfeiture is a legally destructive objection and, unlike the statute of limitations , must be considered ex officio in the process .

Demarcation

The limitation is to be distinguished from the forfeiture . The latter is independent of the circumstance mentioned and is only taken into account in the process upon express peremptorical objection . However, the forfeiture must be applied restrictively, otherwise the statute of limitations would lose their real meaning.

A strict distinction must be made between the forfeiture of a right in the sense described above, the term of forfeiture of a penalty, which is only rarely used in everyday legal language . A penalty or other sanction is “forfeited” when the conditions for its imposition or enforcement have been met. In this sense, the perpetrator has "forfeited" the order of punishment as soon as he realizes the offense subject to punishment or penance, i.e. commits a criminal act.

In this second sense the term forfeiture is used, for example:

  • In connection with § 339 BGB ("forfeiture of contractual penalty"): A penalty which the debtor promises to the obligee in the event that he does not fulfill his obligation or does not fulfill his obligation in a proper (agreed) manner is forfeited if the debtor with his Performance is delayed . With “forfeiture” here, analogous to the criminal law meaning, is meant that the claim to the payment of the contractual penalty arises.
  • In connection with late payment surcharges § 240 AO .

The official heading of § 654 BGB also speaks of forfeiture. It is about brokers who lose their right to brokerage if they have also acted for the other part in breach of contract. This is intended to sanction an obvious conflict of interests . The regulation has nothing to do with the forfeiture due to the passage of time.

literature

  • Karl Spiro: The limitation of private rights by limitation, forfeiture and fatal periods , Volume II: Other time limits and rights . Bern 1975.

See also

Individual evidence

  1. ↑ Schubert, in: Munich Commentary on the BGB, 7th edition 2016, § 242 Rn. 356
  2. ↑ a b LAG Cologne, judgment of June 3, 2003 - 13 (3) Sa 2/03
  3. ↑ BGH, judgment of September 22, 1983, Az .: IX ZR 90/82 = LM § 242 BGB No. 39
  4. ↑ Higher Regional Court Nuremberg, judgment of January 9, 2008, Az .: 5 W 2508/07
  5. ↑ Schubert , in: Munich Commentary on the BGB, 7th edition 2016, § 242 Rn. 375
  6. ↑ Looschelders, Law of Obligations AT, 8th edition 2010, Rndr. 87.
  7. ^ Jos Mehrings: Basics of private commercial law . Pearson Studies, 2006
  8. ↑ Roth, in: Munich Commentary on the BGB, 6th edition 2012, § 654 Rn. 1