Obligation

In the German civil law, a legal entity is obliged, when a debt ratio in the narrow sense directed against it. As synonyms of guilt spoken (as opposed to liability).

A distinction is made on the content of the obligation between ( major and minor ) performance obligations, the owed ​​amount may also be in a failure, and so-called protective or rear view, thoughtfulness obligations, ie Obligations whose fulfillment is not a performance, but have to be observed by the debtor in the Leistungsbewirkung.

A classification by origin limits the purpose originally intended primary obligations on the secondary obligations arising only from a power failure ( such as the obligation for contractual damages).

• 2.1 Performance and protection requirements
• 2.2 Protection Obligations

Content of the obligation

§ 241 BGB is different according to their content, two different types of obligations:

Performance obligations

In paragraph 1 of § 241 BGB, the performance obligations are described: " virtue of the obligation the creditor is entitled to demand from the obligor performance. The performance may consist in a failure. " Debtor is therefore committed to a specific act or omission.

The is a personal right of the creditor contrary: the creditor is entitled to demand compliance with the obligation. This " right of another an act or omission to demand " (§ 194 para 1 BGB ) is called claim.

For instance, the seller by virtue of the purchase contract obligates the purchased goods over to the buyer and to assign them ( § 433 para 1 BGB). This corresponds to the claim of the buyer to require the seller to fulfill these obligations. The seller fails to do so, the buyer can force it with the help of state power means: the seller is liable for that debt.

The performance obligations can be further subdivided into primary obligations and ancillary duties. Thus, the obligations to surrender and transfer of ownership on the one hand and to pay the purchase price are about the purchase contract on the other hand primary obligations. As a fringe benefit obligation comes as the obligation to proper packaging of the item or to purchase into consideration.

Where the claim is payable, as specified in regulations on the place of performance (Hol, Schick, Bringschuld ). In contrast, the performance period relates to the question of when the services are rendered ( satisfiability ) and demands ( due date) may be. The obligation to pay may be for a concrete particular object relate (pieces debt ) or a member of a large number of similar items ( stock or debt obligation in kind ). Also, the consideration is a performance, so that the rules on formation, content and void the performance obligations also apply to them.

Protection obligations

The other hand, paragraph 2 of § 241 BGB describes a different kind of responsibilities that can be described as protective duties, consideration obligations or consideration obligations: " The debt ratio may require each party to have regard for the rights, legal protection and interests of the other part to its content. "

The seller of the car in the example above is just about undertakes to lay in selling salon not slippery flooring on which the buyer slips and is hurt.

In such obligations, it is useless to demand its fulfillment: they are initially not materialize, but generally directed to consideration. If the concrete situation occurs, it is too late: either the damage already caused, or the risk is recognized and therefore poses no threat as more. Protection obligations are therefore not actionable, the law speaks differently even than their duty to perform it, that they confront on a claim of a creditor.

Relevance of the distinction

The distinction is particularly important when the obligations are violated (power failure). The episodes are so different:

In case of breach of obligations to perform the equivalent interest of the creditor is disturbed. While the law takes no valuation of agreed performance and consideration before, but accepted that the Parties the power output the agreed consideration was worth ( " subjective equivalence " ) - this follows from the principle of private autonomy. This subjective equivalence, so the presented equivalence of performance and reward, but missing, if not what was agreed is made. Thus, if the buyer the car is worth 10,000 euros, so his interest in the equivalent consideration is disturbed when he receives no or damaged the car. There is therefore remedies such supplementary performance, reduction, withdrawal or " compensation instead of performance " to restore the equivalence between performance and reward: the buyer receives another, intact car will need to pay for the damaged car less, get the repair paid or may dissolve the contract in whole.

In contrast, the infringement of obligations has nothing to do with the actual exchange ratio: performance and reward them remain unaffected even if otherwise occur regardless of damage to the existing assets of the creditor. It is therefore only to violations of the integrity of interest which can be compensated by so-called " damages in addition to performance." Also, a remedy would be futile: the damage has already occurred. Only in very exceptional cases may withdraw or demand damages instead of the performance of the creditor: namely, if it about the violation of duties to protect the further performance of the contract with such an unreliable debtor no longer reasonable (see § 324 and § 282 BGB).

The obligation arises

Given the potential consequences for the debtor the emergence of duties in the law is regulated.

Performance and protection obligations

" In support of an obligation by legal transaction and to change the content of an obligation, a contract between the parties is required, unless the law prescribes another " (§ 311 para 1 BGB). Force private autonomy can therefore contractually everyone - commit to any services - within certain limits. In addition, the law also assigns duties to perform at, for instance by recognizing unilateral legal acts ( competition brief ) or in the law of unjust enrichment, tort law, etc. From such obligations may also arise protection obligations, § 241 paragraph 2 BGB.

Exceptionally, the obligations to third parties who are not party to benefit ( convenience and extended contract for the benefit of third parties, contract with protective effect for third parties).

Protection obligations

§ 311 para 2 and 3 BGB go but beyond: An obligation with duties according to § 241 para 2 ( duty to protect ) is also produced by the absorption of contract negotiations, the initiation of a contract and related business contacts. Here the earlier customary law recognized culpa has been codified in contrahendo: between every man duties of tort law and the contractual obligations is a third group of cases, which is characterized by the fact that someone granted the opportunity to act on rights, legal protection and interests in relation to, a legal relationship will. Even a third party who is not a party, may make a protective duty in exceptional cases.

There is disagreement, however, whether it is in this regime is a statutory protection money, a " third track " between contract and tort law is ( so especially Canaris ), or whether the duties of protection by law arise only in the pre-and post-contractual stage, but otherwise to contractual obligations " fold ".

Expiry of performance obligations

The typical Erlöschensgrund for performance obligations is to meet with their surrogates ( off, deposit ). Exceptionally, the performance obligations expire independently thereof, eg if the performance has become impossible. The danger of having to pay again (because the debt subject was destroyed ), is referred to as performance risk.

• Law ( Miscellaneous )