Collusion

Collusion (from Latin collusio: collusion ) is unauthorized co-operation of parties with the intent to harm a third party.

Collusion in the German private law

In private law, collusion may result in accordance with § 138 para 1 BGB in the invalidity of the transaction due to moral and justified in accordance with § 826 BGB one Schadenseratzanspruch for willful immoral damage.

A case of collusion exists, for example, if a business partner with the chief clerk of a company sign a contract and both know that it might damage this society. Then the business partner can not claim that the range of the power of attorney in relation to third by law ( § 49 HGB) is fixed and can not be limited by instructions from the internal relationship.

If no collusion can be found a case of evidence can be given. This is, as the name suggests, already present when the business opponent is objectively evident that the representatives exceeds the scope of his legal skills in external relations, the boundaries of the law being allowed in the internal relationship. For this subjectively satisfies a grossly negligent ignorance. Then the third party is not worthy of protection in its reliance on the power of representation, but it is just not collude, so moral standards within the meaning of § 138 section 1 and § 826 BGB shall not be considered. Instead, the rule of representation without power of attorney, § 177 paragraph 1 BGB should be applied by analogy, possibly with correction of the legal consequences over considerable contributory negligence, § 242 and § 254 BGB.

In the legal institutions of collusion and the evidence is an exception to the principle that the person represented shall bear the risk of misuse of power of attorney, who moved from traffic protection points of view. Against this background, it is also clear that these institutions deal with circumstances in which the other person is not unlike normal cases worthy of protection.

Collusion in German criminal law

Collusion with incitement

The term is also used in criminal law when several people work together to commit an offense. According to a criminal in the literature partially represented opinion must collude with the main perpetrators instigated, so close a kind of injustice pact in inciting the instigator (cf. § 26 StGB). Now, after the prevailing view, however, requires only one forth ringing the decision in the way of open intellectual contact.

Importance of private law character in criminal law

In addition, in criminal law can play a role in the form of abuse facts the above-mentioned private legal restriction on the power of attorney by the cases of collusion in embezzlement ( § 266 StGB), because ( according to the majority opinion in the case law and literature) abuse the effectiveness of the external relationship presupposes, whereas it is unimportant in infidelity in the form of the betrayal facts.