Civil law

Questão	Responda
Types of authority	Spezialvollmacht (for a single specific transaction) Generalvollmacht (for generally everything) Untervollmacht (given from agent to sub agent)
Law of normative science	Where law is used in a broad, ambiguous way (reasonable) No scientific precision, decision made by preference No right or wrong, a range of justifiable solutions
Law of obligations (schuldrecht)	Contract law Tort law Law of things -> property law
Contract law	Obligations to others into which we enter voluntarily
Law of things	The right that people have over things
Tort law	Obligations to others that are defined by law
Rechtsfähigkeit	Capacity to have rights&duties All humans have it from birth
Handlungsfähigkeit	Capacity to perform legal acts
Handlungsfähigkeit divided into	Deliktsfähigkeit (capacity to be liable for the consequences of own actions) Geschäftsfähigkeit (power to undertake legally binding actions&contracts)
Handlungsfähigkeit varies by	Age (0-7 none, 7-18 limited, 18 + full) Mental capacity & type of actions Capacities in general vary based on area of law (unborn child has capacity in CL, but not in criminal law)
Difference capacity for entities and persons	Persons from birth as humans Entities gain capacity by law, when even at all
Legal transactions Das Rechtsgeschäft	All legal acts that bring out a legal consequence or effect
What does a legal transaction need to be valid?	Declarations of will (willenserklärung) Statement or action aimed at achieving some legal consequence Real act (realakt) Any act to which the legal system attaches legal consequences regardless of the actors intent
Calculation for declaration of will	One declaration of will (donation) 2 declarations of will One declaration of will + realact
Limitations on legal transactions	Void or voidable
Void (nichtig)	Transactions that are without legal effect from very beginning Outcome - a void contract may not be enforced by either party. Legally it never happened
Voidable (anfechtbar)	Transaction which is initially valid, but may be voided once challenged Outcome - a voidable contract may be enforced by the innocent party, if they choose so
Agency (Stellvertretung)	Where an individual (agent) legally acts on behalf of another individual (principle)
Why would you need an agent?	Company can't directly sign Minor doesn't have handlungsfähigkeit Person wants stay anonymous You're not in the country
Types of agency	Compulsory (created by law) vs non compulsory (by transaction, voluntary) Active (gives the declaration of will) vs passive (receives declaration of will) Direct (unfitted are) acts using the principals name vs indirect (mittelbar) acts in his own name but for principal
Legal consequences of authority for agent	Within authority- transaction directly valid&and has effect for/against principal Beyond authority- transaction not valid, unless principal ratifies it afterwards Unclear authority (agent doesn't make his job clear) - agent is liable then Prohibition on self Contracting (insichgeschäft)
Contracts definition	Legal act corresponding of 2 or more declarations of will with each other, aimed at bringing out a special legal effect Every contract requires offer and acceptance
Freedom of contract in general	Government let people freely negotiate their individual terms and conditions as structuring life and economic relationship can be done as fit
Types of freedom of contract Abschlussfreiheit	May contract or not with anyone May not be discriminate by age, gender, race or disability Allowed monopolies may contract with everyone May not contract with someone who lacks capacity
Types of freedom of contract Inhaltsfreiheit	Freedom to decide contracts content Basic concept: indivividuals decide content and form Limitations to decide form and content: Anti trust law, illegal purposes , consumer protection laws, environmental limitations, specific forms required by statute
Offer (angebot)	Declaration of will that must be received by another party, offering the conclusion of a contract
Offer must follow these aspects	Must contain all essential aspects of desired contract Other party must be able to just say yes Offerer is bound to contract details until it lapses Offer only open for addressed person
What phrases make an offer avoiding to be bound?	Freibleibend (Subject to change) Widerruflich (revocable) OHne obligo (without obligation) With these phrases it's just another offer
Timing of an offer	Valid/effective as soon as it enters sphere of control (machst bereits) & they could have been expected to take notice of it
When does the validity of an offer ends?	Specified in offer If not: reasonable time If other party is present: immediately Whenever offerer formally revokes the over Officially turn down of offer moment
Acceptance (annahme)	Declaration of will accepting the offer of a contract must be unreserved and unconditional Mustn't be overt- silence can be acceptance Is effective once it enters a persons sphere of control
Lack of agreement (dissens)1 Open lack of agreement	Parties know there's no agreement Pertains fundamental point of contract (contract fails ab initio) Side issues: depends if parties still want to go forward regardless to of disagreement In cases of doubt no contract
Lack of agreement (dissens)2 Hidden alck of agreement	Parties don't know about disagreement or ambiguity Disagreemrnt on fundamental aspects: no contract Side issues/secondary aspects: can go ahead if the contract would have gone ahead if they would have known about the disagreement before
Standard Form contracts	Finished Form for contracts (eG for big companies) Law protects against unfair practices If law goes beyond what's allowed by law, contract is void
Void- breach of formal requirements	No specific form required, but where one is, and it's not adhered to, then the contract is void ab initio
Void- Breach of law	Verstoß gegen ein gesetzliches verbot Where a contract itself violates a statuary provision, eg a criminal law
Void- breach of good morals	Guten Sitten Contract against public morality Ambiguous area of law Generally where overly oppressive contract terms will be a breach of good moral
Defection of declaration of will Mental reservation	Geheimer vorbehalt Both parties know that the declared intent to enter into the contract by one side was not real
Defection of declaration of will Sham transaction	Scheingeschäft Actual agreement is fake (-and all d.o.w.'s) To cover a different agreement to which both parties actually agree
Void - Joke declaration	Where one party is making a joke about their intent to enter into the agreement Agreement is void
Void - Defects of the declarations of will Content mistakes	Where to parties misunderstanding each other
Defects of declaration of will Void - characteristic mistakes	Where a mistake is made by one party as to an essential characteristic of the deal
Defects of the declaration of will Void - declaration mistakes	Where one party makes a mistake in their declaration
Defects of the declaration of will Void - deceit	Arglistige Täuschung Where one party purpose fully deceives the other party to convince them to make a declaration of will
Defects of the declaration of will Void - duress	Drohung Where one party threatens an unlawful thing in order to obtain a declaration
Creditor	Person to whom an obligation is owed
Obligor	Person who owes the performance of the obligation
Primary duty	Primärleistungspflicht Arises from the contract itself and generally the entire point of the contract
Secondary duty	Sekundärleistungspflicht Arise generally when the primary duty has not been fulfilled
Types of performance obligations Individual obligation	Stückschuld Where the contract requires a specific item to be delivered
Types of performance obligations Generic obligation	Gattungsschuld Where a contract only requires a type of item to be delivered
Types of performance obligations Quasi generic obligation	Where a contract specific a particular type of a generic object
Obligations as to place of agreement Holschuld	The buyer has the duty to pick up the object from the seller, place of performance at seller
Obligations as to place of agreement Bringschuld	The seller must bring the object to the buyer Place of performance is at the buyers place
Obligations as to place of agreement Schickschuld	Seller needs only send the item on its way to the buyer. Place of performance is at the beginning of delivery
Obligations as to place of agreement General rule	Parties can specify the place of performance as they wish. They generally Do so, if not, the German civil code (statute) applies (normally holdschuld) until it's picked up, responsibility to Obligor/seller P. O. P. Ditates who bears for risk of damage Important Area of commercial law
Ending an obligation to perform	Timely performance of obligation (Good<->money) Some substitute is accepted in lieu of performance by the creditor
Partially fullfilling the obligation to perform	Obligation to fulfill continuous (100€ obligated, 50€ paid back, 50€ still left) Set off occurs if both parties owe the other something
Basic provisions of liability	If Obligor fail to perform: Creditor can claim compensation, if: Total or partial failure or performing late occurs
Justify of non performance	Impossibility Unmöglichkeit Where it's impossible for Obligor to perform Collapse of the foundation Wegfall der geschäftsgrundlage Circumstances have changed to an extent that the contract can't be reasonable upheld
Impossibility of performance	Contract can be still valid Allows the Obligor to no longer be required to actually perform under the contract Depending on impossibility, creditor may claim monetary damages Impossibility excluded obligatory performance but not negate the requirement to compensate other party
Impossibility basic concepts	Objective Initial Subjective Subsequent Unreasonableness Temporary Factual Permanent
Initial impossibility	Where it was already impossible to perform at the time the contract was made
Objective impossibility	Impossible for anyone to perform Obligation is extinguished Damages still exist
Subjective impossibility	Impossible for the Obligor specifically to perform Obligation is extinguished Damages still exist
Subsequent objectivity	Where it only became impossible to perform after the contract was concluded It's fault of one of the parties, so the other party is free of of obligation and may benefit of contract
Unreasonableness impossibility	Actual performance is possible but it would impose a dispoportionate cost on the Obligor Obligor will be released from obligation Monetary damages apply
Permanent impossibility	Where the performance is & will be impossible
Temporary impossibility	Performance is currently impossible but might be possible to a later date Obligation is postponed
Factual impossibility	Where the performance is actually factually impossble
Collapse of foundation of contract	Basis of contract have significantly changed, to an extend the parties wouldn't have entered the contract Important that both parties know what aspects of contract are important to each party
Remedies for collapse of contract	Preferred outcome: adaption of the contract to eliminate any unfairness Second choice: rescission of the contract
Other aspects of liability	Delay (performance not in time) Positive breach (poor preformed, resulting in unexpected damages) Pre contractual duties (one party in a contract negotiation causes damages to the other) Naturally gives rise to tort claims (not for delay)
Creditor delay	Creditor refuses willing Obligor Obligor can claim compensation for delay
Obligor delay	Obligor doesn't perform by set data Verzug Creditor is entitled to claim compensation unless Obligor can prove he was not responsible Creditor must eventually accept a late performance
Pre contractual duties	Some elements of pre contractual activity whether the person intends to enter into a contract or not. Then a breach of the duty of reasonable care or loyality
Damage	Disadvantage person suffers as a result of action in property, belongings or to a lawfully protected right
Damages causation	Damage must have been caused by action or omission carried out or omitted under a contract
Compensation for damages	Naturalsubstitution 1. Choice Substitution as compensation "restitution in kind" Indirect damage 2. Choice money as compensation (most normal)
Different concepts of damage Direct vs indirect	Direct: actual impairment of the injured objector right Indirect: any further consequences of the original damage
Different concepts of damage Material vs non material	Material: any damage that money can naturally compensate Non material: any damage money can't easily compensate
concepts of damage Goals for compensation	Expectancy (schadensersatz statt leistung) Placing person in position they would have been in had the deal been completed without breach Reliance (Vertrauensschaden)Placing person in position he were before deal and breach
Breach of performance damages	Expectancy damages and indirect damages
Impossibility damages	Dissolve contract, it never happened
Impossibility with fault damages	Dissolve contract and if fault: non performance damages to psy
Mistake of fact damages	Dissolve contract and no damages
Delay in performance damages	Loss in profit Obligor pays the loss if provable
Handling damages	Given the difficulty of in proving loss in profits, many contracts include penalty clauses that set out the damages for delay or breach beforehand
Penalty clauses for damages	Parties agree ahead as to damages that would be inflicted by any specific event Courts will enforce these, so long as the damages don't turn out to be disproportionately high
Non performance damages	Payment OR performance
Limitation of indirect damages	Only liable for those damages you actually cause Basic test: those cases that an optimaler beobachter wouldn't consider, expected course of things
Contributory negligence	Where claiming party was also partially involved at fault for the poor performance, then their ability to recover expectancy damages will be reduced in accordance to their relative amount of contribution to the breach
Mitigating damages	The creditor must act reasonably when the Obligor has breached the contract duty to mitigate (or lessen) any damages See the duty to act reasonable
The duty to act reasonably	If creditor can lessen damages that breaching Obligor will owe through reasonable action, he must attempt to do so Failure to act reasonable will result in the creditor having his recoverable damages reduced by the amount he could have saved through reasonable action Any expenses incurred in attempting to act reasonably will also be recoverable from the Obligor
Unjustified enrichment Basic principle	Person A gains something from person B whether by some act of person B or by any other means, without legal justification, and to the detriment of person B, person A has obligation to give back to person B what they gained
Unjustified enrichment Condiction	Claim of the person who is entitled to have unjustified enrichment returned Two categories of conviction : Leistungskondiktion and kondiktion in sonstiger weise
Leistungskondiktion	Where one part performs an obligation for another party erroneously They think they need to perform the obligation but actually they don't
Kondiktion in sonstiger weise	All other unjustified enrichments that come about without the claiming party actually performing an obligation
Leistungskondiktion Requirement	Deliberate act of some sort of with the intent transferring wealth to antigen person Deliberate act must lack legal necessity, ie the person was fullfilling an obligation that didn't actually exist
Exception for Leistungskondiktion	Where a person knows that they have no legal obligation but still do the act, then the outcome is not unjustified
Leistungskondiktion Performance of obligation in exchange for an object that isn't achieved .	Where performance is made in exchange for a promise that is not then fulfilled in return, the original person may recover the value of their performance Exceptions: both sides know that actual performance is impossible Or claiming person frustrated other party's performance, then may not recover
Hypo – Bill has an insurance contract with AIG, whereby they provide cover for his personal property (in exchange for money). Bill’s bike is stolen. He files a claim with AIG and they give him €200 for the bike. A month later, the police find Bill’s bike and return it to him. Solution?	Leistungskondiktion 2 Where the legal basis (valid at the time) of an obligation falls away after the performance of that obligation
hypo – Benny agrees to lease Sylvia a house at an oppressive rate. Sylvia pays the initial amount and Benny lets her use the house. After a few weeks, Sylvia refuses to pay any more money, claiming the lease agreement is void due to “gute Sitten”. Can she get her money back?	Leistungskondiktion 3 Where acceptance of the performance was against the public morals
Kondiktion in sonstiger weise Interference condition	Bruce has not performed an obligation, so this is not a Leistungskondiktion. He has, however, unjustifiably enriched himself at the expense of his neighbor. He is obligated to pay for the neighbor’s paint.
Kondiktion in sonstiger weise Recourse condiction	AIG was under no legal obligation to pay, though they mistakenly believed they were. Brandon has unjustifiably enriched himself at AIG’s expense, and AIG may recover €100 from Brandon.
Kondiktion in sonstiger weise Bona fide condiction + exceptions	Where a party sells property that is not their property, the owner may recover the proceeds of sale. Exception 1 Where the buying party knows that the seller has no right to sell, then they have not bought the property in good faith. Their ownership interest will not be protected. Recovering of good Exception 2: Here as well, there is no ownership interest that the law will protect. Since the charity did not actually purchase the property, it has no right vis‐à‐vis Beau to keep the property.
Leistungskondiktion in sonstiger weise Wrong receiver	Saul has fulfilled his obligation and has unjustifiably enriched Brett at Fred’s expense. Fred can recover the car from Brett
The nature of unjustified enrichment	The action is for enrichment. If the receiving person is no longer enriched, then there is nothing to recover. It is not meant to put the claimant in the position he would be in before the enrichment. It is to get the enrichment back Obviously, the charity can’t give the painting back anymore, and it is no longer enriched... But it also knew that it had someone else’s property and destroyed that property. Thus, they must compensate Beau for the value of the painting.
Contract of sale Revisiting the freedom of contract: basic concept	All legal subjects are equal & that they Re sufficiently capable & component to protect their own legal interest In last few years a variety of special protections with respect to certain contracts has been created Examples: landlord-tenant, employee-employer, consumer-credit contracts
Contracts of sale Two forms of special rules (only apply for certain types of contracts)	Default rules: those rules that apply to specific types of contracts, unless the parties choose to create a different set of rules within the contract Mandatory rules: those rules that apply to specific types of contracts regardless of what the parties otherwise agree
Consumer contract	Where a consumer and an entrepreneur enter into a contract, special rules apply to the relationship Consumer: someone contracting on a matter outside their trade of profession Entrepreneur: someone contracting on a meter within profession
Why is there a special set of rules for such relationship?	The assumption is that when a person contracts outside of their area of business, they will be at a disadvantage vis‐à‐vis someone who is within their area of expertise
Contracts of sale Definition	definition – Contracts that involve the exchange of a thing (or right) for money are considered contracts of sale, and are subject to specific provisions of law
Three types of contracts of sale	On premises contracts: a contract concluded at the entrepreneurs place of business Off premises contracts: contract concluded face to face but away from the entrepreneurs place of business Distance contracts: a contract concluded at a distance, eg online, telephone
Differences in the default&mandatory rules for each type of contract	While contracts of sale generally require no specific form, specific types of contracts of sale do actually require particular form elements, such as a notarial execution for sales of land or inheritance rights, etc...
Requirements of performance for contracts of sale	The seller is required to deliver a good to the consumer that is: Free of material and legal defects Is of merchantable quality
Consumer rights with respect to defects; in case of defect	Replacement of defect object If 2. Demand hasn't been met, revoking from contract Alternatively compensate for damages But defect must be materials (not inconsequential) Where a contract does not specify the agreed upon condition of the item being sold, the item is free of material defects so long as it is suitable for its intended use and it is of a quality that is “usual” for its type. And contracts for barter or exchange are legally considered contracts of sell under the law as well
Contracts of sale: the right to withdraw	§356 BGB gives consumers a 14 day window to withdraw from any sale contracts that takes place over distance or off‐premises. This is not true with respect to on‐premises contracts. 14 days start running: after seller has correctly informed the consumer of his right to withdraw Once delivery has been made
Contracts of donation	where a person agrees to donate money or an item as a gift to another person, this Schenkung is a legally enforceable contract, so long it's made through a notarial deed Where a contract of donation has actually been performed, it no longer matters whether it was originally an enforceable contract or not. The donation stands
The righ to revoke a donation	The Right to Revoke a donation exists where a donor is impoverished and unable to support himself (or his dependents)(§528 BGB) or where the recipient of the donation is “guilty of gross ingratitude by doing serious wrong to the donor”. The donor must revoke within one year from the date on which he knows he may revoke
Is a heir justified to reclaim a donation?	No! Even if it is assumed that Stan acted with “gross ingratitude”, an heir of the donor has no right to reclaim a donation unless the recipient of the donation “has intentionally and unlawfully killed the donor.”
Contracts of loans, leases ... Definition	German law distinguishes between several different types of loan/lease agreements. Although the classification does not always matter with respect to the actual outcome of a case.
Three types of contracts to loan	Darlehen–contract whereby a person is “loaned” money or other fungible items in exchange for a payment of interest Miete–Contract whereby a person pays for the right to use a thing Pacht- contract whereby a person pays for the right to use a thing and appropriate it's fruits
Miete/ contracts for property	Renting a property generally involves a monthly payment of rent in exchange for the right to use the property for the duration of the contract or lease Duetothedifferenceinnegotiatingpowerand sophistication of the parties, property rental agreements, particularly residential property agreements, are subject to numerous legal safeguards for the tenant similar to those that apply to consumers. Landlords are also protected under the BGB
Defect in rented flat, whats the consequence?	Under §536 BGB, Bill need only pay a reduced rent during the time that the material defect in the apartment exists. He may only terminate the contract where the defect renders the apartment uninhabitable (or by giving appropriate notice under the contract
What happens if the owner of a flat needs the rented out flat?	He may terminate the lease Current renter can object the termination because it causes him or his his family an unjustifiable hardship, substitute apartment cannot be found
Two types of contracts for services	Dienstvertrag–A contract for Services where an employer agrees to pay an employee in exchange for work. It is important to realize that in a Dienstvertrag, the payment is for the employment and is not contingent on the accomplishment of any specific thing. Werkvertrag–a contract for specific services where the employer pays for the completion of a goal/task
Dienstvertrag	There is no requirement of any particular form (written or oral) for a Dienstvertrag. a probationary period may last for up to six months and allows termination of the contract with two weeks notice for virtually any reason.
Can a new boss dismiss a employee in case of a dienstvertrag?	No only if the employee is still in his probationary period
Are You allowed to work for a competitive enterprise at the same time as your having a dienstvertrag with another company?	No, your boss can also claim either payment or the payment the employee received for his second job
Most useful everyday contractual relationships?	Contracts of sale, of donation, of lease or loan, for services
Who's mostly protected by the German law?	normally the most vulnerable party, but some rules are set out to protect the sophisticated party as well
What's civil law decided into?	Public law (öffentliches recht) Government is involved Eg criminal law, constitutional law Private law (privatrecht) Government is not involved Eg family law, property law
Characteristics of law	Rules: what you are allowed to do Positive law: rules created through government action Collective enforcement: rules enforced by the government
Law and morality	Law and morality often not going the same way
definition law	Rules that we as the society specifically set up to govern our lives, enforced by the government
Deliktfähigkeit	Capacity to be liable for the consequences of ones own action

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	Criado por leo-k-hille quase 9 anos atrás