Knowledge Representative
Knowledge representative (representative in the knowledge) is someone who is without a representative within the meaning of Section 164 BGB, as a representative is actually entrusted with performing external tasks independently in legal transactions for a business owner, taking note of information and forwarding it. The knowledge of the knowledge representative, for example an employee, is attributed to the principal in accordance with Section 166 (1) BGB . The knowledge representative is thus equated with the legal representative with regard to knowledge of certain circumstances, such as the defectiveness of a purchased item.
If z. If, for example, W prepares a contract for A independently, but does not conclude the contract himself as A's representative, W is a knowledge representative. The A who concludes the contract must allow the knowledge of the W to be attributed to him as if it were his own knowledge. If z. B. acts fraudulently, it is as if A had acted fraudulently himself. The other party can then contest the contract.
In terms of time, the attribution ends with the death of the knowledge representative. The knowledge of the deceased is not attributed to the legal successor. It is different with a legal person. This must account for the knowledge of all of their authorized officers, even if the "knowing" member of the board did not participate in the relevant legal transaction or was not aware of it. The resignation from office or the death of the organ representative does not prevent the continuation of the attribution of knowledge. Because, unlike a partnership, a legal person is independent in its existence from the respective organ representatives.
In personal terms, the attribution of knowledge is limited by the fact that the person for whom the attribution is to apply must have at least a real possibility, but also an occasion, to obtain the knowledge from their own memory, from storage media or from other people. That depends on whether the information about the circumstance at the time of perception had to be stored as possibly legally relevant later.
The knowledge representative is to be distinguished from the knowledge declaration representative. This is used to describe a representative for declarations of knowledge, for example in the context of fulfilling information obligations towards an insurance company.
Individual evidence
- ↑ BGH, judgment of January 31, 1996 - VIII ZR 297/94 para. 12
- ↑ BGHZ 117, 104, 106 f.
- ↑ BGH, judgment of May 17, 1995 - VIII ZR 70/94 para. 15 f.
- ↑ OLG Munich, judgment of February 13, 2013 - 7 U 2616/12 para. 64
- ↑ Schubert in MüKo BGB , Vol. 1, 7th edition 2015, § 164 Rn. 63.
- ↑ Christian Drave: Contestation with own and third-party insurance: Whose knowledge and behavior harm the policyholder? Insurance Practice, October 2014
