Implied-in-fact contract
May constitute implied action (lat. concludere " infer ", " draw a conclusion " ) (also conclusive behavior, tacit declaration of intention or implied action) is available in right-hand traffic, when someone brings his will tacitly expressed and close the honest recipient thereof to a legal binding will so that a contract can come into existence without the express declaration of intent.
General
In a declaration of intent, the inner will must be declared to be so externalised. The articulation of the will is usually done explicitly (oral or written ), but may also be implicit, that is, be made by implication or implied action. Thus, there are three forms, with which you can legally bring his will in saying verbally, in writing or by " coherent " / implied behavior. While mere silence is pure nothing, neither " Yes " nor " No" means and thus is not a declaration of intent, a right intention to be bound is expressed by Konkludenz. He who is silent, however, is usually just does not convey any event, he brings neither approval nor a disagreement.
Requirements
From § 116 BGB can be found indirectly, what is meant by conclusive behavior. After that is assumed Konkludenz if the declarant does not bring his willed action expressed in writing or in words, but with his behavior. These actions will allow the recipient of an indirect conclusion on the legal consequence will of the declarant. This conclusion of the receiver on the right bond will of the declarant has led to the term " estoppel ". " Conclusively " is a behavior but only if it can reliably close to a particular legal consequence will. Silence and inaction alone will never justify this conclusion. Silence is an act of declaration of intent only and only in that the Silent of the meaning of his silence is aware of as an explanation mark. The silent one must therefore be aware that their behavior could be interpreted as an expression of acceptance will. Not every action or behavior of a person is conclusive in this sense. Necessary and sufficient is that a protruding outward behavior is present from which the assumption will for the addressee is clear. The will of the declarant is thus not directly expressed in the positive action, but results indirectly from the circumstances or the behavior of the explanatory person.
An explicit declaration of intent is when someone uses the language in written or word to express his legal consequence will. For coherent behavior from which the recipient may withdraw a legal binding will, hence includes the non-verbal communication such as facial expressions, gestures or other body movements in a given situation. The Court refers to this from the "objective receiver horizon ", according to which what matters is " whether from the standpoint of an uninvolved third objective of the conduct of the offeree due to all the external clues to a real acceptance will be close ( § 133 BGB). "
Typical cases of implied behavior
Many declarations of daily life are silently through facial expressions, gestures or movements ( pointing to the goods, depositing the goods at the box office, boarding public transport) and may be used by the other party to be understood as a manifestation of a bond will issued.
Public transport
Rises someone in a public transport, automatically comes through conclusive behavior a contract of carriage with the transport company about. The transport undertaking shall submit by holding at the stop of an offer to anyone (Ad incertas personas ) that accepts the passenger simply by boarding; Getting in is the positive behavior. Thus, the passenger boarding by subjecting the contract of carriage, including these Conditions of Carriage.
Was controversial for a long time, whether also for the case of protestatio facto contraria non valet ( denial of a clearly stated by estoppel declaration of intent ) applies, with the one caveat is called when submitting an implied declaration of intent, which does not coincide with the external circumstances. Rises namely someone in a public transport and expresses it, he wanted to conclude a contract of carriage, such an exception will be void and the contract comes into existence yet. This statement is ineffective because must necessarily be inferred from the behavior of the person on a particular legal transaction will, whereby their action does not allow a different interpretation. Although the contractor by appropriate remarks know that the declarant will not conclude a contract, the conduct of the declarant to contract enough.
After this now predominant view of the carriage contract is - despite lack of legal binding will - by the implied behavior about. The conclusive "yes" outweighs the explicit "No". Bring someone before getting to the expression of wanting to conclude any contract itself, this represents a contradictory behavior that is contrary to good faith in accordance with § 242 BGB. Accordingly, the contract is concluded, so that the (possibly increased ) transport payment is due. Criminally is a transport service already then in the sense of § 265a, Section 1 of the Criminal Code " fraudulently " if the perpetrator is a transport used unjustified and has been generally surrounds the impression that he fulfills the conditions required by the terms and conditions of the operator preconditions.
Continuing obligations
A lease can also be completed by implication and then comes through conclusive behavior about. Remains of the customer after expiration of the contract continues in return for rent in the rental, and the landlord tolerates this behavior implied, as 545 of the Civil Code shall be extended the tenancy implied by §. This is by both parties to matching (tacit ) declarations, the expression in actual behavior - find - for use, against rent payment. Even with temporary employment contracts according to § 625 BGB by estoppel an extension possible. This in term obligations, the purpose is pursued to prevent a non-contracting state.
Crediting an account
Even with the rejection of a credit account (§ § 780, § 781 BGB ) through the transfer recipient, the so-called protestatio rule plays a role. If one assumes that abstract promise of debt contracts are (disputed ) and thus require acceptance by the receiver, the solution § 151 BGB is considered missed. For the BGH account credit is effective even when the beneficiary account holder has not (yet ) acquired any knowledge of it. If a transfer executed by electronic data transfer, the claim for the beneficiary account holder of the credit however is achieved in the time in which - on a regular basis due to a Nachdisposition to the beneficiary bank - the receiving bank through an organizational act with legal binding will, the credit data for unconditional notice to the transfer recipient makes available; Up to this point, the transfer is revocable. It is the Supreme Court case on it, at which time makes the receiving bank with visible external legal binding will the data of credit by an organizational act the remittance receivers available. This can be done by sending the unconditional bank statements or the provision or the fact that the customer of the action taken, the data held by the bank is provided as a statement printer unconditionally available. In the case of an executed alone in the electronic traffic transfer, in which the data are transmitted without prior review possibility by the receiving bank in the data file, the electronic credit is regularly subject to the so-called Nachdisposition in which the compliance of account number and beneficiary designation, compliance with the Agreement on the transfer of funds and the presence of a revocation is checked.
Hospital treatment
A contract is also effectively if there is the party that takes a performance to claim - which is generally only provided for remuneration - expressly stated that it will not pay any compensation. It must be the objective explanatory value of their behavior made against itself in such a case rather. Someone Displays namely, a behavior that can be interpreted in good faith and fair practice only as an expression of a particular will, as its literal custody for an appropriate interpretation of the behavior is irrelevant, because he sits in contradiction with his own actual behavior and has forfeited by his actual behavior entitlement to an otherwise interpretation.
Auctions
Who raises his hand during an auction in the bidding phase, brings by this hand signals implicitly expressed that By bidding. His bid is the application, the supplement of the Auctioneer its adoption. This is due to the prevailing objective theory (see Trier Wine Auction ), which refers to the outward behavior, even if it is not consistent with the intent of the declarant. Did the declarant with his hand lifting only greet someone and make a bid under no circumstances, the compensation of the rules of error takes place. The auctioneer could understand the show of hands in the given situation as a commandment. The - mistakenly delivered - declaration of intent is effective, but may be appealed in accordance with § 119 BGB analog, resulting in liability for damages pursuant to § 122 BGB of the contesting ( Fidelity ).
Others
A permit floating -cash transactions by estoppel presupposes a regular basis that the approver knows the ineffectiveness or at least expects it, and it can be seen that in his conduct of the expression of the will to make the hitherto binding as suggested reputable business. This is about transactions involving at least three people are involved, because a minor has the consent of a parent ( § 108 paragraph 2 sentence 2 BGB; conclusion of the contract of a minor without consent ), or a represen Santander the consent of his principal ( § 177 para 2 sentence 2 BGB; requires a contract involving a representative without power of attorney ). Generally, the law requires in cases express consent; estoppel must clearly mark after this judgment to the recipient that the approver wants to close the deal legally binding.
It is disputed whether the declarations of intent by implied conduct also includes the so-called will of shops, so ownership is relinquished, appropriation or Inheritance.
Coherent behavior without legal obligation will
If exceptionally coherent behavior without explanation consciousness or without legal obligation will be treated as a declaration of intent, the person making the statement must have negligently awakened confidence to a specific statement content in the message recipients. Despite lack of explanation of consciousness ( legal binding will, business will) is a declaration of intent before, if the declarant could recognize and avoid the application of the necessary in the due diligence that his statement in good faith and fair practice could be construed as a declaration of intent and the recipients they actually has understood. This statement can be challenged under § § 119, § 121, § 143 BGB. This case deals with the " Trier Wine Auction " underlying circumstances.
Express declaration and shape constraints
A mere estoppel is not sufficient in those cases where the law requires an express declaration. Then the declaration must not in writing, but be particularly clear and unambiguous; only conclusive behavior does not meet the requirements for an express declaration then. According to § 244 para 1 BGB a foreign currency debt can be paid in Euros, unless the payment in foreign currency has been expressly agreed. This introduces an implied action by paying in euros not succeed if an express agreement provides for payment in foreign currency. In § 305 Section 2 No. 1 BGB should be noted that the TNC can be done legally only by express reference by the user and consent of the consumer contracts. Conditions can therefore never be implied behavior become part of contracts. A similar provision is contained in § 700 paragraph 2 BGB in the case of the irregular deposit of securities in case of depositary.
If by the law even writing ( according to § 766 BGB about guarantee ) or notarization required (about land purchase contract pursuant to § 311b BGB), coherent behavior is not sufficient even more so. If the legally prescribed form constraint not met, appropriate contracts are null and void ( § 125 BGB).