Declaration of intent
In German civil law , the declaration of will ( Latin declaratio voluntatis also expression of will ) is the expression of a legal will, i.e. the outwardly perceptible declaration of the will of a person who intends to achieve legal success . According to the legal system , success should occur because it is willed by the person making the declaration. If the will and the explanation fall apart, there is a lack of will .
Conceptual approach (theories)
According to the "will theory" already advocated by Friedrich Carl von Savigny , Bernhard Windscheid and Ernst Zitelmann in the 19th century , the focus is on the actual subjective will of the person making the declaration. If there is no legal will, there is also no effective declaration of intent; rather, there is no legal will.
On the other hand, the "theory of explanation" objects that relying on the will of the person making the declaration would misunderstand that third parties as recipients of the declarations would be exposed to undue hardship if the aim was to protect the person making the declaration. The main proponents of this view, Josef Kohler , Rudolf Leonhard and Otto Bähr , therefore focus on how the recipient was allowed to interpret the behavior in good faith . Since the interest in the protection of legitimate expectations cannot permit the appeal to a lack of legal consequences, a declaration of intent is therefore present.
Since the codification of the German Civil Code (BGB) did not end this theoretical dispute, a "mediating theory" as a more recent doctrine tried to bridge the dispute in such a way that it assumes that declarations of intent are essentially declarations of validity , i.e. acts of legal regulations with effect inter partes .
The Federal Court of Justice (BGH) answers the questions that remain unanswered in such a way that declarations of intent that require receipt must be assessed from the recipient horizon , which applies to the declaration itself, as well as to its content-related interpretation and the fact that a declared legal consequence cannot be demonstrated. The BGH makes it clear that the term declaration of intent includes both the final and the normatively assigned declaration. Since the idea of the protection of legitimate expectations is an integral part of legal business doctrine, there is no contradiction between these two guiding principles.
Difference to legal transaction, business-like action, real act and will-activity
- Legal transactions consist of at least one declaration of intent and are aimed at the occurrence of a certain legal success, actually bringing it about (not necessarily in the case of declarations of intent) because this is intentional (distinction from business-like action). Legal transactions can also include further declarations of intent, similar actions and real acts.
An intended legal consequence does not occur through the underlying (matching) declaration of intent (s), but through the legal transaction, e.g. B. a termination or a contract. The legal transaction is the means of structuring legal relationships. The concluded contract, for example, establishes the rights and obligations and not the individual declarations of intent. Only legal transactions or their underlying declarations of intent can be challenged with legal effect ( (1) BGB).
Another difference is based on the fact that legal transactions can be unilateral (e.g. will) and multiple (e.g. contract). Declarations of intent can only be made by one person at a time. A unilateral legal transaction can, in terms of its content, correspond to the underlying declaration of intent.
A transaction can not be received in need as opposed to a declaration of intent, as it has already been "created" (right business ), that already exists and will not be disclosed to be effective, must and it is only by the announcement of a transaction.
- From the business-like action, the differentiation to the declaration of will is expressed in that there legal consequences are not brought about by the will of a person, but rather are a "by-product" of a declaration of will or other declaration, e.g. B. if a declaration of intent is given in the form of a reminder i. S. d. BGB, the reminder becomes effective (unilateral legal transaction), the resulting claim to default interest BGB, which does not have to be intentional but only arises on the basis of the law, is the business-like act. Here, too, a legal success (as in a legal transaction) actually occurs.
- In the case of a real act , there does not have to be a legally significant will, nor is it significant that it can be traced back to one. Any legal consequences arise regardless of this.
- The declaration of will differs from the pure act of will through the existence of an announcement purpose.
Types of declarations of will
There are basically two types of declarations of intent: the one that needs to be received and the one that does not need to be received.
Reception Needs (see the explanation, if it is to give to someone else according to the law "versus" i.e. when they are within his sphere of influence and the recipient has the opportunity to see them under normal circumstances. The declaration of intent that needs to be received occurs more frequently. It saves the other side from having to worry about the legal situation. According to this, the exercise of a design right ( design declaration) must be received.1 BGB para.); This is linked to (1) BGB: Declarations of intent requiring receipt among absentees are only effective from the point in time at which they are received by the recipient,
The declaration of intent that does not need to be received , on the other hand, is already effective at the moment of submission, without anyone having to take notice. A declaration of intent that does not require receipt is, for example, part of the will , the claim , the foundation business and the relinquishment of ownership .
Act of a declaration of intent
The declaration of intent consists of an objective (external) and a subjective (internal) fact.
The objective fact contains a declaration that must be aimed at bringing about a certain legal consequence so that an objective observer in the role of the recipient of the declaration can conclude that there is a will to be legally bound behind it. In this respect, one speaks of the creation of a declaration by the declaring party.
Will to act
From the point of view of an objective third party, the declaration must indicate that someone wants to act (voluntarily). This is e.g. B. not the case with external violence. The declaration of will can be made expressly (verbally or in writing) or implicitly (through conclusive behavior). Conclusive behavior exists, for example, when a buyer at the bakery only points to a roll that he wants to buy or when the patient shakes hands with the doctor and enters his consulting room. Silence , on the other hand, is basically not a declaration of will, because there is usually no explanatory value to be found in it (qui tacet consentire non videtur; German: whoever is silent does not seem to agree). Silence is therefore basically neither approval nor rejection, but legally insignificant (legal nullum ). There are exceptions to this principle: One of the most important is the party agreement, in which the parties attach a certain explanatory value to behavior. If this is the case, silence is also a real declaration of will. For reasons of legal certainty, the legislature has also given silence an explanatory value, in which case it is a matter of false or fictitious declarations of intent. So is, for example, the passage allowing the Ausschlagungsfrist respect to an inheritance (see. , BGB) Assuming the same. The so-called approval clause of the Insurance Contract Act also includes a declaration of intent through silence.
Will to be legally bound
Another element is the legal bond will : This refers to the targeting of the expression of will on setting a legal consequence. The will to be legally bound is constitutive, i.e. a mandatory requirement, for the existence of a declaration of intent and is absent in the following cases: requests to submit an offer , free clauses, favors , giving advice or information and calls for help. Whether there is a will to be legally bound is to be judged according to the so-called objectified recipient horizon. At least in the case of the invitatio ad offerendum, a will to be legally bound is completely absent, because it is not a matter of a declaration of intent, but an invitation to submit an offer i. S. d. BGB. So there is no binding offer, only an invitation to submit an offer. According to a widespread opinion, this is the case with displays in shop windows or sending advertising brochures or when ordering goods in the Internet mail order business (usually). Because here the seller does not want to be legally bound with everyone. He would like to check the creditworthiness of the buyer, compare data and check his inventory beforehand (risk of double obligation).
The will to be legally bound expresses the fact that an objective third party may interpret the act as significant in legal terms. In addition, the willingness to do business is required after a minor opinion. This must refer to the essential parts of the contract. In the case of a sales contract these are z. B. the purchase contract parties (buyer, seller), the object of purchase and the purchase price. In the case of a work contract, no remuneration has to be agreed, because the work provider has a legal claim to this.
The subjective fact reflects the inner side of the person making the explanation. In this respect, one speaks of the internal state of will. The question here is whether the external explanation corresponds to the internal will. It consists of the will to do business , the willingness to act and an awareness of explanations . It is noteworthy that it is not the internal state of will, but only the will made externally recognizable by the declaration that can bring about the desired legal result. Nevertheless, the subjective facts must be present in order to be able to assume an error-free declaration of intent. Despite the lack of a subjective characteristic, the declaration of intent can still be valid.
Will to act; Awareness of action
This describes the will to do something consciously or to omit. The will to act is constitutive for the existence of a declaration of intent. It is absent under the same conditions that also lead to the non-existence of an act in the criminal sense, d. H. especially with vis absoluta (irresistible mechanical violence) or behavior in a state of complete unconsciousness ( syncope , sleep, hypnosis , etc.). The subjective will to act is also missing in the case of so-called lost declarations of intent, in which the declaration of intent is not evident to the recipient without the sender's will to divest himself. A classic example of this is an initially signed offer that the husband left on the desk and which the wife sends against the husband's later will. Due to the lack of willingness to act, no contract is concluded. Due to the fact that this cannot be recognized by an objective third party, the recipient, who trusts in good faith in an effective delivery, is partially granted compensation for the loss of fidelity in analogous application of German Civil Code .
is the awareness of making any legally relevant declaration at all, i.e. of behaving significantly in legal transactions. For example, a person in an auction who does not want to make a bid by raising their hand, but only wants to greet a friend, does not want this. How a lack of awareness of explanations affects the existence of a declaration of intent is controversial ( Trier wine auction ). The prevailing opinion on this problem is the so-called explanation theory, which is derived from the principle of responsibility: According to this, the person making the declaration is assigned his behavior as a declaration of intent even if he is not aware of the explanation, if he could and should have recognized that , if he had taken the care required in legal dealings Behavior is perceived as a declaration of will, so-called negligence. Something different only applies if the other person is not worthy of protection, for example because he knew that the other person was not aware of the explanation. In the case of the auction, the person raising the hand would have been able to recognize that the raising of the hand is understood as placing a bid.
denotes the will to conclude a very specific legal transaction , e.g. B. the will to conclude a rental agreement for a specific apartment. If the will to do business is missing, this does not affect the effectiveness of the declaration of intent. The BGB also assumes this, because otherwise there would be no need for any contestation rules in the general part of the BGB. Even though the will to do business is not necessary for the existence of a declaration of intent, its existence indicates the existence of the other requirements. I.e. the declarer is legally bound. However, he can contest his declaration analogously in accordance with (1) BGB, i.e. pretend that he has not made a declaration, because a contested declaration of intent is ( ex tunc ) void, i.e. it has never been there. However, the contestant must then compensate the other who relied on the declaration for the damage that he suffered due to the trust in the validity of the declaration ( BGB).
Lack of will
Ideally, the expressed and the real will coincide. If this is not the case, one speaks of a lack of will . A distinction is made between the conscious lack of will ( sham business , declaration of joke , secret reservation , unlawful threat ), regulated in , Paragraph 1 Alt. 2 BGB, and the unconscious lack of will (error), regulated in , Paragraph 1 Alt. 1 BGB.
The error does not make the declaration of intent ineffective. In certain cases, however, the error entitles you to retroactively eliminate the consequences of the erroneous declaration of intent ( challenge ). A distinction must be made between the following errors:
- If the declaration unconsciously deviates from the business will, it is a contestable error in the expression of will . It occurs as a content error ( Paragraph 1 Alt. 1 BGB), in which the declaring party makes the declaration of intent that he wants to make, but errs about the content that is attached to his declaration by interpretation.
- In the case of a declaration error ( Paragraph 1 Alt. 2 BGB) the declaring party does not make the declaration of intent as he wanted to make it (prescribe, promise, ...).
- In addition, the incorrect transmission ( BGB) of the declaration of intent, e.g. B. by a messenger, by the post, etc. conceivable. The incorrect transmission is to be treated like a mistake of explanation.
- If the declaring person assumes a false circumstance that leads him to his declaration of will, then it is an error in the formation of the will . Such a lack of will is also called a mistake of motive, which in principle does not entitle to contest the declaration of intent. This is different in the case of a mistake about the characteristics of the person or thing that are essential to traffic ( characteristics ). Characteristics of a person could be: the profession they have learned with an employment contract, creditworthiness with the hire purchase. Properties of a thing are e.g. B. Material for a ring (gold-plated, real gold). The value or the price is not a property of a thing: it only results from the properties. Special features apply to calculation errors and errors of legal consequence . (2) BGB: mistake of
- The declaration of intent caused by fraudulent deception is also contestable .
A declaration of intent becomes effective
If the prerequisites for the objective and (if necessary) subjective facts of the declaration of intent are met, further circumstances are required for them to take effect. A distinction must be made here between declarations of intent that need to be received and those that are not.
Declarations of intent not requiring receipt
Declarations of intent that do not need to be received are only given in the event of a claim or the establishment of a foundation or a will . In the absence of a recipient, such a declaration of intent already becomes effective through the submission in the sense of a simple voluntary resignation.
Example: For a will to be effective, it is sufficient to write it down. It does not need to be forwarded to the beneficiaries.
Declaration of intent requiring receipt
A declaration of intent that needs to be received requires, in addition to the submission, access to the recipient of the declaration or his representative in order to become effective (cf. BGB). Surrender does not only mean the simple voluntary surrender, but that the declaration of intent has been surrendered so deliberately that under regular circumstances the recipient may be expected to receive it. Access means, in turn, that the declaration of intent that has been given has come under the control of the recipient in such a way that, under regular circumstances, the possibility of knowledge can be expected. Actual knowledge is only important if this occurs before the fictitious knowledge.
Examples: For an offer in the form of a letter to be effective, the letter must first be franked and posted with the correct address of the recipient at the post office (delivery), secondly the post office must have thrown the letter in the recipient's mailbox and thirdly the mailbox at regular intervals Circumstances have been emptied (access).
Anyone who makes the declaration of intent bears the burden of proof for access. Normal e-mails have hardly any evidential value, comparable to a simple letter. Even if a so-called qualified electronic signature is used, this does not change. The recipient can use it to prove who made the declaration of intent.
In the case of faxes , according to a judgment of the Frankfurt Higher Regional Court of March 5, 2010, it can be assumed that the fax has been received and thus received, if a transmission report can be substantiated with a confirmation note on the sending side and nothing is presented on the receiving side in the process about why the fax was received did not take place (secondary burden of disclosure : which device, connection contained in the memory, whether and how a reception journal is kept, etc.).
Revocation of declarations of intent
Declarations of intent can be freely revoked until the legal consequences intended with them occur, unless the law (e.g. inBGB for the offer) or the declaring party himself determine otherwise. In these cases, declarations of intent that need to be received can only be revoked if the revocation is received by the recipient before or at the same time as the declaration of intent (see (1) sentence 2 BGB).
- Brox, Hans / Walker, Wolf-Dietrich: General part of the BGB, 42nd edition, Munich 2018, chap. 4 margin no. 14th
- Motives of the BGB , Volume 1, p. 126.
- Otto Palandt : Bürgerliches Gesetzbuch . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , overview. Einf. V. Section 116, marginal no. 2 f.
- Dieter Medicus : Civil law . 19th edition Carl Heymanns Verlag, Cologne ea 2002, Rnr. 45, ISBN 3-452-24982-4 .
- Theoretical controversy in the light of the problem of errors (online) .
- Werner Flume : General part of civil law: The legal transaction , Springer-Verlag, Berlin 1975. § 4, 7 ( the declaration of intent as declaration of validity ); Karl Larenz : General part of German civil law , Munich 1960. Multiple new editions. § 19 I.
- BGHZ 21, 106; 91, 328.
- BGHZ 91, 330.
- Gottwald / Würdinger: Examens-Repetitorium BGB-Allgemeine Teil , 4th edition, Heidelberg 2016, Rn. 35.
- BGHZ 65, 13, 14.
- BGH NJW 1984, 2279f.
- BGHZ 91, 324.
- BGH NJW 2005, 976 (977)
- BGHZ 16, 57
- OLG Frankfurt, judgment of March 5, 2010, Az. 19 U 213/09, full text Rn. 17th