Lesion beyond moiety

The Laesio enormis (Latin, literally: significant damage ), German also Laesio or ban the enormous injury is a legal institution originating in Roman law. After today prevailing opinion, the laesio enormis goes back to two Constitutions of the Roman emperor Diocletian in the years 285 and 293 (C. 4, 44, 2 and C. 4, 44, 8). How Justinian Codex sent in 534, was a real estate salesman who has received less than half of the true value as the price, cancel the purchase agreement using the laesio enormis or the difference to the demand -driven price ( iustum pretium ).

Austria

Has at two other binding legal transactions a part is not even half of what he has given to others, get from this to the common values; so the law grants the injured parts, the right to demand the lifting and the production of rights ( § 934 Civil Code).

The laesio enormis allows the Condensed ie the contract avoided if at the time the contract is entered the value of its output is more than twice as large as the value of the consideration. So it depends on the objective equivalence of benefits.

The legal term " Laesio enormis " also states that a debt will expire at the latest, when twice the original amount borrowed has been paid. In addition, detailed interest receivables are immoral and therefore void.

Legal consequences

The Shortened may avoid the contract and demand the cancellation of the contract. Termination of the contract can be averted but the contractor at the Condensed by paying the difference between the performances ( facultas alternativa ).

Exceptions

The Shorter can not avoid the contract,

  • If he has taken the matter of particular preference ( § 935 Civil Code)
  • If it was the true value is known ( § 935 Civil Code)
  • In a mixed donation ( § 935 Civil Code)
  • When the actual value can not rise (more) ( § 935 Civil Code)
  • If he has acquired the matter in a court order ( § 935 Civil Code)
  • With luck contracts ( § 1268 Civil Code)
  • Comparisons ( § 1386 Civil Code)
  • In the distribution of assets in the course of an amicable divorce

The application of § 934 Austrian Civil Code can not already in the contract (but possibly after) are excluded. The cancellation must be made within three years before the courts of the contract. Charged to an entrepreneur the application of § 934 Austrian Civil Code pursuant to § 351 UGB may be excluded by contract.

In the event of a subsequent laesio enormis, § 1048 Civil Code.

Germany

The German civil law knows no written principle of laesio enormis. The Bundesgerichtshof but in the case law assumes that a business pursuant to § 138 para 1 BGB is immoral and therefore null and void if a striking disproportion between the value of the performance and the consideration consists. Such a mismatch adopts the federal court, if the difference in value is 100 %. In addition to the objective of equivalence fault requires the Supreme Court but also subjective factors in the party favored by the business. Regularly had still their reprehensible attitude in the affirmative. That is basically the case when the privileged, Party recognized the imbalance or this knowledge has negligently closed. Since in a particularly gross disproportion of benefits according to BGH an actual presumption exists for the reprehensible attitude of the Divided Before that must first be rebutted by special circumstances, in the literature of the renaissance of laesio enormis the speech.

Switzerland

The Swiss Code of Obligations shall order, in Article 21 ( " cheating " ) as follows: " If created by a contract an apparent mismatch between the performance and the consideration, the final part of the of the by exploiting the plight of ignorance or carelessness others has been caused, the injured party may declare within a year, that he did not consider the contract and demand the return of the already Advance "(para. 1). " The annual period begins with the conclusion of the contract " (para. 2). The provision was not yet widely used, but yet on the newer leading judgment of the Swiss Federal Supreme Court BGE 123 III 292 is to refer.

Economic Analysis of Law (law ​​& economics )

The laesio enormis was rejected from an economic perspective because of their poor incentive effects. In particular, exist due to laesio enormis no incentives to invest in the production of information, such as for oil, remaining undetected valuable works of art, etc. to look for when this information can not be exploited due to this provision. ( One may, as already explained, the artwork of the famous painter, whose " true value " 10000, - purchase € An offer of 5001, - € - is not for the presumed value of 100. € would the owner already valuable information signal, so make available for free. ) If the information cost replacement prevented by the legal system, search costs are not spent, so that the goods can not be found or the special property of the goods is not recognized. The undiscovered art, oil reserves, etc., are of social welfare lost.

Codex Justinianus Federal Court of Justice of Germany Unconscionability
495088
de