Breach of contract

The breach of duty is in accordance with the rules in force in Germany since 1 January 2002 the new law of obligations the central concept in the law of power disturbances. A debtor commits always a breach of duty if he acts differently than it is prescribed for him by the debt ratio. The breach of an obligation arising from an obligation according to § 280 para 1 has Civil Code ( BGB) basically means that the creditor can demand compensation. The damage assessment is carried out acc. § § 249 et seq.

Breaches can be committed, for example, in contractual obligations. As part of a sales contract, the seller ( § 433 paragraph 1 sentence 2 BGB), for example, obliged the goods sold to are free from material defects and defects. If the seller delivers defective goods, he violated the duty called. Obligations, the violation of which a claim for damages under § 280 para 1 BGB can arise, however, also within a similar statutory or contractual obligations. Example: A person has damaged a shop window from person B and therefore owes tort ( § 823 para 1 BGB) damages. If person A repaired the damage and will damage the window displays the person B, person A commits a breach of duty within a legal obligation and is liable according to § 280 para 1 BGB.

Conceptual history

As part of the law of obligations modernization has long been discussed, the matching central concept of the new power fault law. Within the debt Rights Commission of the Federal Ministry of Justice initially were the terms " breach of contract ", " breach of an obligation " and " non-compliance " is proposed. Ultimately, the Commission followed but the one proposed by Uwe Diederichsen concept of breach of duty. Against the term " breach of contract " saying that even legal obligations for which no contract exists, should be embraced. The term " breach of an obligation " would prepare for such rules of conduct problems, which correspond to no direct right of claim, such as the obligation to consideration of other legal interests of the creditor. The concept of " non-performance " was also considered too narrow, since under non-fulfillment only the partial or complete absence of due performance will understand.

The double offense of breach of duty

The term " obligations arising from the contractual relationship " in § 280 paragraph 1 BGB comprises two types of requirements: performance and protection duties.

A breach of duty is first given when a performance obligation is not fulfilled or bad. Owes someone about a bank the repayment of a loan of € 200.000, - and does not pay, then he commits a breach of duty. The same applies if the seller of a car does not return the vehicle sold to the buyer.

On the other hand, it is a dereliction of duty, if the debtor 's obligation to consideration of the legal interests of the creditor ( § 241 paragraph 2 BGB - protection obligations ) is not satisfied. Even at an example: A craftsman is called to an apartment to repair a faucet. He executes this order, but pushes through carelessness a valuable vase in the hallway to. The craftsman has indeed fulfilled his obligation, but not sufficiently taken into consideration on the property of the client, thereby breaching the duty of consideration. He has, therefore, a breach of duty within the meaning of § 241 paragraph 2 BGB committed ( for damages acc. § 280 para 1 BGB).

Legal consequences of the breach of duty

§ 280 para 1 BGB stipulates that the debtor has in principle to pay compensation, if he has committed a breach of duty. This does not apply if the debtor can prove that he is not responsible for the breach of duty. In the language of the Civil Code, this means that he has then " not responsible ". The burden of proof shall because of the negative wording of § 280 paragraph 1 sentence 2 BGB the debtor. To represent the debtor in accordance with § 276 Section 1 BGB in general intent and negligence ( fault ). So he must pay damages if he has a duty consciously violated or if lack of care it is least to blame in the performance of his duties.

The basic rule of § 280 para 1 BGB is modified by the following paragraphs. § 280 para 1 BGB is the sole basis for a claim for compensation in addition to performance. If the required compensation is a compensation for delay in performance, 2 BGB in accordance with § 280 section must additionally the conditions of default pursuant to § 286 BGB be met. In the case of damages in lieu of performance linked with § 280 para 3 of the damages to the other requirements of § 281, § 282 and § 283 BGB. The obligation to pay compensation then takes the place of the original obligation.

In the event that multiple breaches of duty are given - in the context of § 281 BGB notably the original non- performance or poor performance and the connection is not ( proper ) subsequent performance, the question arises as to which of the two breaches of duty, the obligation to represent iRd § 280 paragraph 1 sentence 2 BGB applies. The answer is very controversial in the literature. As a result, it will probably have to suffice that the Schulder has to represent one of the two.

Comparative legal classification

A uniform standard of liability due to breach of duty, as it exists since the law of obligations modernization with § 280 para 1 BGB, corresponds to the current international legal development. The drafted by the Lando Commission " Principles of European Contract Law" contained in Article 9; 510 a corresponding regulation.

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