Intention

In the German civil law is the statement of intent ( Latin: voluntatis declaratio ) the utterance of a legal consequence of the will, ie the proclamation ( explanation ) of the will of a person who intends to make a right success. This success is to occur after the law because he is wanted by the declarant. For example, the notice of cancellation or termination statement is a declaration of intent. The proposed sanction is the removal of a transaction. Traps will and declaration apart, there is a lack of will.

In civil litigation, the ( procedural ) statements are called procedural acts.

• 3.2.1 elements
• 3.2.2 will to act; action awareness
• 3.2.3 Declaration of consciousness
• 3.2.4 Business will
• 3.2.5 Lack of will

Unlike transaction, business-like action, Realakt and volitional activity

Concepts such as the declaration of intent of the transaction, the business -like action of the Realakts and volitional activity are not defined in the Civil Code.

• Transactions consist of at least a declaration of intent and are directed to the occurrence of a certain legal success, actually (not necessarily in declarations of intent ) to bring about this because this is intentional (as defined by the business -like action). Transactions may additionally include other declarations of intent, business -like actions and real acts. An intentional legal consequence does not occur through the matching declarations, but by the transaction, for example, the contract. The transaction is the means for the design of legal relations. The contract concluded about establishes the rights and obligations and not the individual declarations of intent. How can validly only legal transactions and their underlying declarations of intent to appeal ( § 142 para 1 BGB). Another difference is due to the fact that transactions can be one-sided (eg Testament) and multilaterally (eg contract ). Declarations can always be expressed by only one person. A unilateral legal transaction can be content after the match with the underlying declaration of intent. A transaction may be contrary to a declaration of will not be listening to, as it is already "created" was ( legal transaction ), that already exists and does not have to be announced to its effectiveness and it is only by the announcement of a transaction.

• From the business -like action differentiation for declaration of intent shown by the fact that there legal consequences is not caused by a person's will, but rather " by-product " of a declaration of intent (for example, if a declaration is given in the form of a reminder as defined in § 286 BGB, the reminder is active ( unilateral act ), the consequent right to interest is § 288 BGB ( which are not wanted, but arises only because of the law ) the business related action). Again, necessary actually occurs right a success (as in the transaction ).

• In a Realakt neither a legally significant will must exist, nor is it relevant that he is due to such. Possible legal consequences occur independently thereof.

• From pure volitional activity, the declaration of intent by the existence of a proclamation purpose differs.

Types of declarations of intent

There are basically two types of declarations of intent: the receiving needy and non- needy receiving declaration of intent.

In need of receiving the explanation, if according to the law "versus" leave one else is (compare § 143 para 1 BGB); thereto ties § 130 para 1 BGB: reception needy declarations of intent between absent are only from the date effective for which it sent to the recipient, that is, when they are in his sphere of influence and the receiver under normal circumstances, the possibility for information. The receiving needy declaration of intent is more common. It saves the opposite side of the uncertainty about the legal position. Thus, in particular the exercise of a right design ( design declaration ) is listening to.

The needy will not receive explanation, however, is already effective at the moment of delivery, without anyone of them would have to take note. A declaration of intent is not receiving needy as part of the testament of the Competition, the foundation business and ownership is relinquished.

Facts

The declaration of intent consists of an objective ( external) and a subjective (inner) event.

Objective fact

The situations described contains a statement which shall be directed to the attainment of a particular legal consequence, so that the circuit on a underlying law binding will is possible for an objective observer in the role of explanation receiver. It also speaks to the extent of creating an explanation facts by the declarant.

Will to act

The declaration must be close from the perspective of an objective third party that someone ( voluntary) wants to act. This is for example not the case with external force. The expression of will can be done explicitly ( orally or in writing ) or implicitly ( by estoppel ). Coherent behavior occurs, for example, if a buyer at the bakery shows only on a bun, which he wants to buy or if the patient goes to the doctor 's hand and enters his office. In contrast, a silence is not generally a declaration of intent, because it is usually not a declaration of value can be seen from ( Qui tacet consentire non videtur; German: He who is silent, does not seem to agree ). Silence is, in principle, neither agree nor disagree, but legally insignificant ( legal nullum ). From this principle, but there are exceptions; one of the most important is the agreement of the parties, in which a code of a certain explanatory value is given by the parties. If this is the case, it is also the silence of a real declaration of intent. The legislature has partially a silence given for reasons of legal certainty, a declaration value, then it is false or fictitious statements of intent. So is, for example, the passage of the Let Ausschlagungsfrist regarding an inheritance (cf. § 1942, § § 1944 et seq ) assuming equal. The so-called endorsement clause of the insurance contract law knows a declaration of intent by silence.

Legal bond will

Another element is the legal bond will: this refers to the targeting of volition on setting a legal consequence. The legal binding will is constitutive, that is a mandatory prerequisite for the existence of a declaration of intent is missing in the following cases: invitatio ad referendum, free clauses complacency conditions, provision of advice or information or calls for help. Whether a legal binding will present, must be assessed according to the so-called objectified receiver horizon. At least with the invitations- ad referendum there is no legal binding will entirely, because it is not a declaration of intent, but the solicitation of an offer within the meaning of § 145 BGB. There is therefore no binding offer before, but only a request, for its part, make an offer. This is the case with displays in shop windows, or sending of advertising brochures or when ordering merchandise on the internet mail order company (usually ) widely believed. Because here wants to commit not equal in legal transactions with any of the sellers. He wants to check the creditworthiness of the buyer, match data and its inventory before control ( risk of double liability ).

Business will

With the right intention to be bound is expressed that an objective third party may interpret the action as a legal transaction significantly. Is also required for a minority opinion and the business will. This must refer to the essential elements of the contract. In a purchase contract that are for example the purchase contract parties (buyer, seller), the object of purchase and the purchase price. When you contract for no remuneration must be agreed, because in this work the Leister has a legal claim.

According to the prevailing view, however, the business will is not a constituent part of the declaration of intent. If the conclusion of a specific legal transaction of the business of the declarant will depend, § § 119 ff BGB would already be superfluous.

Subjective facts

The subjective element reflects the inner side of the declarant resist. One speaks in this respect also from the inner will of facts. This involves the question of whether the outer declaration corresponds to the inner will. It consists of the business will, the will to act and an explanation consciousness. It is noteworthy that not the inner will of facts, but only by the declaration made ​​visible to the outside will can bring about the desired legal success. Nevertheless, the mental element must be present in order to assume a fault-free declaration of intent can. Despite the absence of a subjective feature, the declaration of intent may still be valid.

Elements

The subjective element is divided into three elements:

Will to act; action awareness

This refers to the will, anything consciously to do or to refrain. The will to act is constitutive for the existence of a declaration of intent. He is missing under the same conditions that also lead to the absence of an action in the criminal sense, that is, especially in vis absoluta ( irresistible mechanical force ), or behaviors in a state of complete unconsciousness (sleep, hypnosis, etc.)

Declaration of consciousness

Is the awareness to make some pretty significant statement ever so pretty business to behave considerably. This is what is, for example, a person in an auction not who wants to make the lifting hand no bid, but only a friend would like to welcome. How does a lack of explanation consciousness affects the existence of a declaration of intent is controversial ( Trier Wine Auction ). The ruling is the opinion of this problem is the so-called explanation theory, which is derived from the accountability principle: After that, the declarant attributed his behavior even in the absence of explanation consciousness as a declaration of intent, if he could have recognized in compliance with the prescribed in the legal due diligence and have that be behavior is seen as a declaration of intent, so-called declaration of negligence. This does not apply only if his opponent is not worthy of protection, perhaps because he knew about the lack of explanation consciousness of the other. In the case of auction of Handhebende could realize that the lifting hand is seen as a bid.

Business will

Called the will to complete a very specific transaction, such as the will to enter into a lease for a particular apartment. If there is no business will, harm not the effectiveness of the declaration of intent. Of this also assumes the Civil Code, because otherwise there would be no need avoidance rules in the general part of the Civil Code. Although the business will is not necessary therefore for the existence of a declaration of intent, as indicated its presence but the presence of the other requirements. This means that the declarant is legally bound. He can contest his statement but 1 BGB analog to § 119 para, so stand back as if he had not given any explanation, for a declaration of will is contested (ex tunc ) void, so as never been there. However, then the disputing must replace the other, the familiar to the statement the damage that he has suffered through reliance on the validity of the declaration.

Will lack

Ideally match the uttered and the real intention. If this is not the case, one speaks of a lack of will. A distinction is ( note business, joke explanation, Secret of title, wrongful threat), regulated in § § 116-118, 123, Section 1 of 2 Old between the conscious will lack. Civil Code, and the unconscious will lack (mistake ), regulated in § § 119-122, 123, Section 1 1 Alt. BGB.

The error does not invalidate the declaration of intent. In certain cases, the error right, but to avoid the consequences of erroneously issued declaration of intent retrospectively ( challenge ). The following errors are possible:

Deviates the statement unconscious of the business will off, so it is a challengeable error in the expression of will. It occurs as a content error ( § 119 para 1 BGB 1 case ), in which, although the declarant lodging the declaration of intent that he wants to leave, but is mistaken about the content of his statement is resolved by interpretation. In the declaration error ( § 119 para 1 BGB second case ) are making the declaration, the declaration of intent not on how he wanted to make it ( prescribe, promise ... ). In addition, the incorrect transmission ( § 120 BGB ) is the declaration of intent, eg, by a messenger, through the mail, etc. conceivable. The incorrect transmission of information is to be treated as a declaration error.

If the declarant of a false fact of which brings him to his declaration of intent, it is an error in the decision-making process. Such a lack of will is also called motive misconception of principle, not entitled to challenge the declaration of intent. Unlike the case of a mistake as to transport essential qualities of the person or thing ( § 119 para 2 BGB: Property error) is. Characteristics of a person could be: Profession at a contract of employment, creditworthiness in counseling purchase. Properties of a thing are eg material in a ring ( gold plated real gold). No property of a thing is the value or the price: it arises only from the properties. Contestable is the declaration of will caused by fraud.

Delivery and receipt of the declaration of intent

If the conditions of the objective and (if necessary) subjective facts a declaration of intent before, it still needs further circumstances to their effective date. The minimum requirement of any declaration of intention is the levy. The discharge means that the declarant has expressed the will, did willfully ie in the direction of the receiver, so that can be expected under normal circumstances with an access.

Example: Stamped letter is placed in the post or a person passed, who is authorized to mail the letter for you. A will, however, need not go. It is effective when it was handwritten written and signed; a competition brief will be effective when it was promised.

Most declarations are listening to. You require in addition to the duty nor the receipt by the consignee or his representative declaration to take effect. Come on wake is a declaration of intent, if it is so enters the power range of the receiver that can be expected under normal circumstances with a knowledge acquisition. On a real note of it does not matter.

Example: The letter reached the addressee's letter box. He is regarded at the time as having been received, can be expected in the fact that the letter box is usually cleared.

Who makes the declaration of intent, the burden of proof for access. Regular e -mails have little probative value, comparable to a simple letter. Even when using a so-called qualified electronic signature changes no difference. With it, the recipient can prove by whom the declaration of intention dates.

When fax can after a judgment of the Higher Regional Court of Frankfurt on 5 March 2010, so assumed by the access from the incoming faxes and if a) can be assigned on the transmission side, a transmission report by clicking OK notice and b ) will not put forward at the receiver side in the process to why the fax did not take place (secondary burden of proof: that contain device connection in memory whether and how an inbox log out, etc.).