Impossibility

From impossibility is called the law of obligations, if the debtor can not provide a service for factual and / or legal reasons. After the legal principle nulla est impossibilium obligatio goes with the impossibility of the obligation to perform. The Civil Code (BGB ) does not define this term, but also places it assumed to be known ( § 275 BGB). The impossibility will invalidate the obligation, that is, the debtor needs its obligation (for example, handover and over ownership of a sold but the seller stolen TV after the contract ) no longer satisfying. If the debtor is released from its obligation to pay, then he has no claim to consideration ( § 326 para 1 BGB), ie without power nothing in return. If a debtor is exempted from this requirement due to impossibility, the contract is still on. Practically, this may mean in particular that the liberated debtor may enter into other contractual obligations such as compensation obligations.

Function and regulatory context

The fact that the impossible can not be required ( impossibilium nulla obligatio ), first ( or rechtshindernde - crushing objection ) appears as a natural law for granted. When a performance is impossible, but depends on its precise content and therefore can be decided only in connection with these regulations:

Whether a performance for a debtor is impossible depends on the performance guilt, especially if a piece of guilt or obligation in kind exists.

In the piece guilt already the demise of the only fulfillment suitable object for impossibility in the genus debt, however, leads only to the downfall of all elements of the genre. Who owes, for example, the transfer of ownership of a specific car, is released by the destruction of his guilt; he owes the other hand any car of this type, so it would have all these vehicles are destroyed. However, already before entering concretization, § 243 paragraph 2 BGB.

That the debtor, if has not occurred by the power of action performance, must make again, is referred to as performance risk; with the impossibility occurs a transfer of risk to the creditor.

From the extinction of the right to power the quite different question is to distinguish what is to happen to the consideration for a mutual agreement with the claim ( counter- performance risk ), but if the power must not be provided.

Types of impossibility

Objective and subjective impossibility

A distinction is made, who can not provide the service. Both are governed by § 275 para 1 BGB

• From the objective impossibility is when no one can bring to the world the power ( eg a particular image burn ).

• From the subjective impossibility (also impotence ) is mentioned, if the power can be even though provided by a third party, but just by the debtor under no circumstances (example (!): One who remains anonymous thief has sold image stolen, making it over the mountains ). For money debt, however, is valid according to the prevailing opinion of the special feature that illiquidity never leads to the inability to perform. This applies rather money you have to have. Can be justified by the existence of a bankruptcy order; the legislature obviously did not permit citing the impossibility on the money owed.

Initial and subsequent impossibility

A distinction is made, at which time occurred the performance obstacle.

• Initial impossibility (event, causing the impossibility of performance, in § 311a BGB occurs before conclusion of the contract, regulated).

• Subsequent impossibility (event, causing the impossibility of performance, occurs after the contract, then § 275 BGB).

Legal consequence in all the above cases is that the debtor already by law from his obligation is free.

Factual impossibility or personal

The new German law of obligations allows the debtor also to appeal pursuant to § 275 para 2 BGB that a benefit may only be provided at disproportionate cost (so-called factual impossibility), or that the provision of a personal performance (so-called personal impossibility) is unreasonable, § 275 para 3 of the Civil Code. These cases of objection are approximates the actual impossibility. Since it is an objection, the debtor of the obligation to provide the service but only free if he relies on it too.

As an example of the disproportionate burden of the case is often cited that the seller sold a ring, which then goes down with a ship and sinks to the seabed. The seller then does not need to obtain the ring. Whether or not there is disproportionality, however, depends on the circumstances of each case. Not unreasonably, the recovery is, of course, if a company is charged just with the recovery ( and this does not turn out to be unusually difficult).

An example of the unreasonableness of the performance in person is the opera singer whose child on the evening of the show is sick.

See also: Qualitative impossibility

Legal History

By the law of obligations modernization and reform of the cases of directed impossibility services took place. According to § 306 of the BGB were contracts that were on initial objective impossible achievements void. In the cases of post- objective and subjective impossibility of debtors of the performance was released, § 275 BGB The case of the initial, subjective impossibility was not regulated by law.