Business foundation

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Business base are in civil law are not the actual contract charges, but shortcomings revealed in contract common ideas of both parties as well as the recognizable one party and not challenged by their conceptions of the other sense of the presence or the future entry conditions, the business intent of the parties as long as this Builds up ideas.

General

The doctrine of the business foundation is part of contract law . Both the basis of the business and its disruption were not regulated by law until 2001, but were treated as a sub-case of the general clause of good faith ( § 242 BGB ). The clausula rebus sic stantibus, in turn, stipulated that the contract would no longer be binding in the event of a subsequent fundamental change in the circumstances at the time the contract was concluded. This law restricts the rule that contracts must be adhered to (“ Pacta sunt servanda ”).

The business basis in German civil law

In the Civil Code , which came into force in 1900 , the problem of the business basis was initially not regulated. The clausula rebus sic stantibus , as it was already discussed in Roman law , was not known to the BGB. The ruling by Frederick II of Prussia in the Müller-Arnold case , which was exercised against the renunciation from 1748 and assumed a disruption of the business base in favor of the miller Arnold, was 150 years ahead of civil law dogmatics .

However, the case law of the Reichsgericht and the Federal Supreme Court - on the basis of the general clause of § 242 BGB - has in special cases allowed the objection of the loss of the basis of the business if it would have been unfaithful in view of the overall circumstances, the contractual partner for whom the basis of the business had ceased to exist wanting to stick to the contract. Certain cases were also resolved through the law of enrichment ( condictio ob rem ). The institute acquired particular importance as the basis for the appraisal rulings of the Reichsgericht.

Since January 2002 there has been a regulation in § 313 BGB with the official title Disruption of the Business Basis ; this should only change the previous jurisprudence, but not the previously recognized principles. The regulation not only regulates the complete elimination of the business basis, but also other disruptions that are material to the contract. There, in Section 313, Paragraph 1, Clause 1 of the German Civil Code, the business basis is described with circumstances that have become the basis of a contract. These circumstances are so obvious that they were not expressly made part of the contractual agreement. If these circumstances - not expressly derived from the content of the contract - have changed significantly after the conclusion of the contract, there is a disruption of the business basis. The disruption must be so serious that it causes the mutual obligations to become grossly disproportionate. However, it must not be about expectations and circumstances which, according to the contractual agreements, fall within the risk area of ​​one of the contracting parties. For example, if a fixed rent for 10 years has been agreed and the local rents rise rapidly during the term of the contract, this risk represents a contract-typical landlord risk that does not belong in the scope of a disrupted business basis. The rules on disrupting the basis of the business therefore only take effect if neither the contract nor the law distributes the risk.

scope of application

In the case of disruptions affecting the basis of the business, a distinction can be made between superordinate "large" and "small" events. The “big ones” include war , revolution or natural disasters that can affect the basis of business. All other events, in particular third-party events that affect contracts, belong to the "small" events. The doctrine of the discontinuation of the business basis was developed on the basis of a "big" event, namely the disruption of economic conditions after the end of the First World War . The legal term goes back to Paul Oertmann . If “major” events affect the actual components of the contract, this is a case of force majeure .

contract

The systematic position of the regulation on the disruption of the business basis shows that it can only be relevant where an effective contract is concluded. In cases in which there is already a lack of a contract or an initially effective contract later lapses due to contestation , the regulations on the disruption of the business basis therefore do not apply.

The contractual scope of the business basis is very broad. The doctrine of the business fundamentals covers all contracts of daily life and affects right down to the right of donation . Here the BGH ruled that after the divorce of the children, parents-in-law can claim back the amounts of money paid to the child -in-law during the marriage, because the partnership between daughter and son-in-law is the business basis of the gift and this basis no longer exists after the breakdown of the marriage. On the other hand, ideas about the tax consequences of a contract are not part of the business basis. The underlying transaction is neither a condition nor a basis for a forward exchange transaction , even if the bank was aware of the specific hedging. Because the content of the forward exchange deal is precisely the contractual assumption of the risk of the future price development by the company. If the underlying transaction fails, the hedging company must fulfill its part of the transaction on the due date of the forward transaction. The failure of the underlying transaction is a typical business risk that must be borne by the exporter.

Contractual agreements have priority over § 313 BGB. The changed circumstances must not have become the subject matter or content of the contract. Also, no special regulation may intervene (e.g. Section 779 BGB for mutual error about the contractual basis in the comparison). In particular, Section 275 (2) BGB - cases of factual or practical impossibility - takes precedence over Section 313 BGB. On the other hand, § 313 BGB covers precisely the cases of so-called economic impossibility, i.e. cases in which the debtor cannot be expected to incur additional costs. Within the scope of the regulation, a right to adjust the contract and, on a subsidiary basis, to terminate the contract is created.

Business basis as a constituent feature

As mentioned at the beginning, the exact scope of the concept of the business basis, even in so far as it has become the subject of the current legal regulation, is controversial.

In particular, the case law has so far used a subjective concept of the business basis. The basis of the case law was the understanding of the business basis as the sum of the ideas that one party or both parties have based the contract on. The business basis understood in this way must, however, be carefully delimited from the motives for which a party concludes the contract, the discontinuation of which cannot generally impair the existence of the contract. The difference is that the assumption of certain circumstances as the basis of the business was understood by the other side as a prerequisite for the contract and was at least not objected to. The fact that these ideas are now expressly put on an equal footing in Section 313 (2) of the German Civil Code (BGB) with the other cases of disruption of the business basis speaks in favor of recognizing subjective circumstances as the subject matter of the business basis - which is discussed in jurisprudence .

Major change

The fact that only a serious change in the circumstances on which the business is based entitles to modify or even dissolve the contract is obvious in view of the trust that the other contracting party was right to place in the contract.

The law expresses this not only through the adjective severe , but also through the further requirement that the parties would not have concluded the contract or would not have concluded the contract if they knew of the change. This also shows that a mere subsequent change in the assessment of certain circumstances cannot have any influence on the basis of the business.

Unreasonableness

The legal regulations on reasonableness show that the problem was originally discussed by the legal system in the context of the provision of § 242 BGB on good faith . In order to accept a case of - far-reaching - disruption of the basis of the business, the person who wants to invoke the disruption cannot be expected to adhere to the contract; conversely, the adjustment or dissolution of the contract must be reasonable for the contractual partner. The assessments required for this should be made on the basis of the circumstances of the individual case and the statutory risk distribution and risk allocation. In any case, the amendment to the contract is unreasonable for the other party if the person who wants to invoke the disruption of the basis of the business has caused it himself at fault.

On the other hand, § 313 BGB is based on the fact that adherence to an unchanged contract cannot be expected of the debtor. The performance interest of the obligee is thereby hidden.

Legal consequences

The legal consequence of the disruption of the business basis is a claim to adapt the contract to the new circumstances, as far as this is possible. A modification of the contract can only be requested if it is more favorable for the other part than the reversal of the contract. Otherwise the contract is to be processed according to the principles of withdrawal . In the case of long-term contractual obligations , such as employment or tenancy, the right to extraordinary termination of the contract replaces the withdrawal due to the difficulty of reversing the contract.

According to the established case law of the BGH, a disruption of the business basis does not usually result in the termination of the contract, but leads to the adaptation of its content to the changed circumstances in a form that takes into account the legitimate interests of both parties. A change in the highest court rulings can lead to disruptions in the contractual basis, which must be dealt with according to the rules governing the discontinuation of the business basis.

The business rationale should not be confused with the business content. The latter includes all contractual and legal regulations, in particular the distribution of typical business risks among the contractual partners. Therefore, the business basis only affects circumstances that have not become an express part of the contract.

Loss of the business basis in Austrian law

The Austrian ABGB does not contain any general regulation for a discontinuation of the business basis. Instead, various problems in this context are regulated in individual special standards. Jurisprudence and literature assume a loophole in the law for cases that are not regulated in detail if a typical contractual requirement is missing or no longer applicable, which was not foreseeable when the contract was concluded and one of the contracting parties does not have to bear the risk of the elimination. If the further execution of the contract is unreasonable, the contract can be terminated or adapted in analogous application of § 872 ABGB.

Individual evidence

  1. BGH judgment of 10 September 2009, Az .: VII ZR 152/08, NZBau 2009, 771, 774.
  2. RGZ 50, 255 ff.
  3. Cf. also the so-called revaluation jurisprudence of the Reichsgericht, judgment of the Reichsgericht of November 28, 1923, RGZ 107, 78
  4. Power of the 11 December 1779
  5. Cf. on this Fritjof Haft, From the scales of Justitia, The trials of the miller Arnold - and the "power of speech" of Frederick the Great, p. 47 ff
  6. RGZ 99, 115 (116).
  7. ^ Dieter Medicus: Civil law. 20th edition 2004, para. 152.
  8. Brox / Walker, General Law of Obligations , 35th Edition, § 27 Rn. 4 mwN
  9. ^ BGH, judgment of February 8, 1984, Az .: VIII ZR 254/84.
  10. BGH NJW 2006, 899.
  11. ^ Richard Alff: The Civil Code with special consideration ... 1974, p. 20.
  12. ^ Paul Oertmann: The business basis - A new legal term. Leipzig and Erlangen, 1921.
  13. ^ BGH, judgment of February 3, 2010, Az .: XII ZR 189/06.
  14. ^ Walter Doralt: Long-term contracts . Tübingen, ISBN 3-16-155618-6 , p. 356-409 (oclc 1042159148 [accessed July 22, 2020]).
  15. BGH NJW-RR 2004, 229.
  16. BGH NJW 1983, 1548, 1552.
  17. BGH NJW 2002, 3695.
  18. RG 168, 121, 127.
  19. Martens , in: beck-online.GROSSKOMMENTAR, as of March 1, 2018, § 313 BGB marg. 23