Unlawful threat

from Wikipedia, the free encyclopedia

An illegal threat is - generally speaking - any threat that is considered illegal in the relevant legal system .

In German civil law, under the conditions of § 123 , § 124 BGB, it entitles to contest declarations of intent : that is, a declaration of intent is valid, but can be destroyed if the legal subject determined by the illegal threat to make the declaration of intent vis-à-vis the contestant within the statutory period of contestation the challenge is declared. The contestation because of an illegal threat is in § 123 Abs. 1 2nd alt. BGB regulated. Sections 1314, Paragraph 2, No. 3, 4, 1315, Paragraph 1, No. 4, 1317 BGB (annulment of marriage) contain a priority special regulation.

As with the challenge due to fraudulent misrepresentation, the challenge due to an illegal threat is about the protection of freedom of will when making declarations of intent of any kind.

A special feature in comparison to the other facts that justify contestation from ( content , explanation , property and transmission error or fraudulent deception ) is that there is no error in the illegal threat.

Overview of the requirements

The prerequisites for a challenge due to an unlawful threat are:

  1. a declaration of avoidance
  2. the reason for contesting the unlawful threat, d. H.
2.1 a threat
2.2 an illegality of the threat
2.3 a causality of the threat for the declaration of intent
3. Compliance with the contestation period of § 124 BGB (details: malicious deception )
4. The challenge is not in breach of trust (rare exception).

threat

A threat is understood to mean the prospect of a future evil on the occurrence or non-occurrence of which the threatening pretends to have an influence. “The person threatening must have the will to determine the other party to make a declaration of intent. He must be aware that his behavior can influence the decision-making process of the recipient of the threat. However, it is not necessary that the threatening person acts with intent to do harm or wants to gain an advantage through the threat (...). The threat must be deliberately aimed at luring the threatened person into the assessment that he can only choose between two evils, of which the submission of the recommended declaration should appear to be the lesser evil compared to the measures to be expected according to the threatening person's understanding ”.

Illegality of the threat

The threat must be illegal .

The illegality of a threat can exist in three cases:

  1. Illegality of the agent (example: threat of beatings)
  2. Illegality of the purpose (i.e. the extorted declaration of intent is illegal)
  3. Inappropriateness ("inadequacy") of means and ends.

The inadequacy of means and end is about the fact that both the means and the end are lawful in themselves, but the use of this means for this purpose is illegal because the threat is not an appropriate means to achieve the desired success (means Purpose relation). The problem is the demarcation of inappropriateness from socially appropriate behavior. (Eselsbrücke: "One has nothing to do with the other.")

This becomes clear from the case law on the inappropriateness of the threat of legal action or dismissal:

  • The threat of a criminal complaint for drunk driving to enforce an existing purchase price claim is inappropriate.
  • The threat of legal action for payment of an existing debt is socially appropriate.
  • The threat of an (extraordinary) dismissal by the employer if a “reasonable employer” was allowed to seriously consider a dismissal, even if an outright dismissal would have [not] proven to be legally valid in an employment protection process, is not illegal.

Causality of the threat for the declaration of intent

The contestability of a declaration of intent presupposes a causal connection between a threat and the declaration of intent. For this it is not sufficient that the declaration of intent would not have been made without the threat (the threat was therefore a conditio sine qua non ): According to Section 123 (1) BGB, the contestant must rather "determine" by the threat to make the declaration of intent have been. When submitting the declaration of intent, he must have acted under the impression of the threat and not on the basis of an autonomous will-formation that was no longer significantly influenced by it. Sufficient co-causation can, however, be assumed if, without the influence, the declaration of intent would either not have been made at all, not in the form selected, or not have been made at this time. If the threat of an evil is suitable to induce the threatened person to make a declaration of intent, it can regularly be assumed that it also had such an effect.

Individual evidence

  1. ↑ See Jauernig / Mansel, BGB, 15th ed. 2015, § 123 Rn. 1
  2. ↑ Jauernig / Mansel, BGB, 15th edition 2015, § 123 Rn. 1
  3. ↑ BGH NJW-RR 1996, 1281 (1282); LM No. 23 to § 123; BGHZ 2, 295, Brox / Walker, BGB AT, 32nd edition 2008
  4. ↑ BAG of December 15, 2005 - 6 AZR 197/05 - juris Rn. 17 = NZA 2006, 841 = AP No. 66 to § 123 BGB
  5. ↑ Jauernig / Mansel, BGB, 15th edition 2015, § 123 Rn. 13
  6. ↑ Jauernig / Mansel, BGB, 15th edition 2015, § 123 Rn. 15th
  7. ↑ Jauernig / Mansel, BGB, 15th edition 2015, § 123 Rn. 15th
  8. ↑ BGH, cf. Jauernig / Mansel, BGB, 15th edition 2015, § 123 Rn. 15th
  9. ↑ BAG of November 23, 2006 - 6 AZR 394/06 - Rn. 40 = NZA 2007, 466
  10. ↑ BAG dated November 28, 2007 - 6 AZR 1108/06 - Rn. 48
  11. ↑ BAG of December 13, 2007 - 6 AZR 200/07 - Rn. 58 = NZA-RR 2008, 341
  12. ↑ BAG of December 13, 2007 - 6 AZR 200/07 - Rn. 59 = NZA-RR 2008, 341
  13. ↑ BAG of December 15, 2005 - 6 AZR 197/05 - Rn. 19 = NZA 2006, 841 (843)
  14. ↑ BAG of May 12, 2010 - 2 AZR 544/08 - Rn. 42 = NZA 2010, 1250