Rescission

The resignation leads in the German law of obligations to a rescission of the contract, so that services received must be returned granted ( § 346 para 1 BGB); certainly go out so far unfulfilled claims ( quite devastating objection ). A cancellation is only possible in exceptional cases; are basically contracts to meet as agreed ( pacta sunt servanda ).

Due to the resignation of the contract ex nunc is transformed into a reverse transaction debt ratio, which is legal for the refund. Accordingly, the legal consequences of withdrawal not be determined by the law of unjust enrichment.

The resignation is in general contract law, and is therefore in principle applicable to all contract types. It was governed as part of the law of obligations and modernization is also taken the place of the limited to the purchase and service contract law Wandelungsanspruchs.

Requirements of a valid withdrawal

Unlike the rescission of the resignation is not a claim, but a design business. So it has to be exercised by the resignation legitimate party. Effective date of such resignation is explained, of course only if the resignation willing also state a right of withdrawal.

Right of withdrawal

The right of withdrawal is a relative subjective right, more precisely, a design right, because it changed the legal situation, without the other side would be involved: the mutual agreement concluded contract is reversed on one side.

Contractual

The right of withdrawal may be agreed by contract ( " one party has contractually reserved the resignation ," § 346 Section 1 BGB in 1 case). In this case, it must be exercised within the agreed period for withdrawal. If no period has been agreed, the opposite side to eventually gain assurance about whether the contract will be performed or not. Therefore, they can then put the resignation entitled to a reasonable period, the lapse can also extinguish the right of withdrawal ( § 350 BGB).

Legally

More important is the statutory right of withdrawal ( " if he has a statutory right of termination ," § 346 Section 1 BGB in Case 2 ). Since contracts are generally fulfill, the law will allow such a right only if the implementation meets with special difficulties (power failure): The debtor does not, not timely, faulty or injured in the occasion of the ancillary duties. Then the creditor should get away with the mutual agreement of its obligation to return.

The legislation distinguishes whether the performance is still possible or whether, perhaps because the amount owed thing was destroyed, impossibility exists.

In the first case, the right of rescission under § 323 BGB follows. Previously, the creditor must always set a grace period to allow the debtor to fulfill yet (priority of subsequent performance).

If we can not, however, the claim is attributable to the consideration usually by operation of law ( § 326 paragraph 1 sentence 1 BGB ), a resignation will not be necessary: the seller can not deliver the car because it was destroyed in an accident, so it must be the buyer does not pay (but see also Section 2). Has he paid the consideration, so he can reclaim (para. 4). If, however, only the fulfillment impossible, for example because the car has owed ​​irreparable damage, this result would be unfavorable because the creditor 's performance so may still wants to accept. Therefore, in such cases ( Qualitative impossibility) does not remove consideration of law ( section 1 sentence 2 ): here, the creditor may choose, or resign the reduction. This right of withdrawal due to impossibility of remedy ( § 326 Section 5 of the Civil Code ) naturally requires no - nonsense here - Period.

The right of withdrawal is also available in case of failure of the basis of § 313 BGB, unless an adjustment of the contract is not possible or a part ( contractor ) is not reasonable ( paragraph 3).

§ 324 BGB finally granted a right of withdrawal if the debtor indeed provides the service free of errors, but it violates other obligations and the creditor, therefore, " a party to the contract is no longer reasonable. "

The right of withdrawal is not a claim, so can not expire. § 218 para 1 BGB makes the resignation but ineffective, " if the right to the performance or subsequent performance has lapsed and the debtor thereon shall convene " ( objection ), which leads to a limitation period similar result.

For the travel agreement § 651i Civil Code contains a special right of withdrawal with some special rules.

Resignation

As a design business of withdrawal must be exercised by the guardian: " The withdrawal is made by notice to the other part ," § 349 BGB. After all, the other side must be able to obtain knowledge of the change in law. So this is like other design statements to a recipient in need of declaration of intent must be received by the other Party. It is therefore hostile condition.

Legal consequences

If the resignation effective the contract is transformed into a rescission obligation. The contractual obligations shall be reversed by the resignation in contractual restitution claims ( § 346 para 1 BGB). Each party shall return the services rendered as well as hand drawn uses the. This would mean, as the seller will pay the purchase price, the buyer returns the property over to the car. The legal basis that is not eliminated, such as following a challenge, but there is " a mirror image " with opposing obligations remain. Consequently, it is also - unlike after challenge ( § 142 BGB) - no unwinding after enrichment law.

Is the return of the received item or the publication of the emerged impossible or impracticable, compensation is payable in lieu of restitution or surrender. § 346 paragraph 2 sentence 1 BGB one of these cases the impossibility or Untunlichkeit (not exhaustive). The original relationship between performance and reward Synallagma is obtained by that resulting from the resignation obligations of the parties are to meet only train train ( § 348 BGB). The right to ask for a mutual contract damages is not excluded by the resignation ( § 325 BGB).

In these regulations § refers 357 paragraph 1 BGB for the revocation: "Find On the Cancellation and return policy, unless otherwise provided, the provisions on statutory rescission shall apply. " Also, the reduction in the purchase and Construction Law refers to the case that the ( then: to high ) consideration has been provided on the right of withdrawal ( § 441 para 4, § 638, paragraph 4 BGB).

Special forms of withdrawal

The Civil Code also speaks elsewhere of resignation, but not here means those general schemes, but also leads to certain areas of one 's own resignation standards. A common feature of these cases that it is about breaking away from a transaction.

So there are about a withdrawal from the engagement. Since the engagement is not a replacement contract, arises not so much the question of the reversal in the real sense as by the protection of the trust of those who expected a marriage. Also for the return of the gifts will be no reversal of debt ratio: § 1301 BGB instead refers to the law of unjust enrichment.

When will the withdrawal problem does not arise: the decedent can change it at any time or cancel, in return, there is not. For the contract of inheritance, however, § § 2293 et seq contain their own cancellation rules. The withdrawal is possible if he was reserved in the contract of inheritance, in case of misconduct of the legatee and similar cases. Again, there is no restitution obligation: a performance of the testator is, as long as it lives, not provided; about a payment made after enrichment law to be returned ( if condictio rem).

Others

Often the rescission of a contract is colloquially known as cancellation, legally it is however always a resignation. For all contracts are indeed through the unwinding debt ratio internal to cancel bookings, but is generally applicable right of rescission.