Void (law)

The law used in Germany, the terms invalidity and nullity largely synonymous. The jurisprudential literature, however, indicates a legislative act (contract, declaration of intent, administrative, procedural act, etc.) to be ineffective if the act was initially effective, but due to later events is ineffective and a healing of the existing defect is possible. The term invalidity includes a further, radical sub-form of ineffectiveness. This includes acts that unfold from the beginning no legal effect and for which a cure is usually not possible. Common to both are underlying defects whose severity determines the curability.

• 3.1 annulment in civil law
• 3.2 invalidity in special regulations
• 3.3 annulment of administrative acts
• 3.4 Invalidity of local transactions
• 3.5 annulment of laws

Term differentiation

The terms invalidity and nullity are used in different ways. But already for Werner Schubert a legal transaction was null and void, " which is unable to produce its defectiveness for the intended legal effect; contestable that which creates it the legal effect, because of its defectiveness but only to the extent produced that effect in the event of an attack is not able to withstand. " The concept of nullity used the legislature to ensure that the transaction is to be regarded as if it would not have been made. To occur nullity, used the law as a rule the term " void ", but are used to indicate grounds for annulment of the terms " ineffective " and "can not" needed.

Ineffectiveness

A legal transaction is void if it is contrary to mandatory statutory provisions, but a cure is still possible and thus still be valid. Conversely, transactions may initially be effective, but are supplemented by successful use of design rights subsequently ineffective. The lack of the transactions underlying slightly, so that the law provides for a cure.

Pending ineffectiveness

When floating ineffectiveness the effectiveness of the completed legal transaction until approval is by a third party or the expiry of a certain period in the balance. The floating ineffectiveness is therefore a temporary condition that can develop to full effectiveness or ineffectiveness of the business. The conclusion of a contract by a minor is up for approval by the legal representative (usually parents) ineffective ( § 108 para 1 BGB). This is also true for the " representation without authority " (§ 177 para 1 BGB) and the disposal of a non-entitled ( § 185 BGB). Both are basically ineffective, but can be cured by an approval by the represented person or the guardian. By approving the contract shall be deemed to be effective ( § 184 para 1 BGB). Exists between the parties during the limbo a special connection ( fault of the contract, " culpa in contrahendo ").

These transactions were initially ineffective and can be cured by third parties ( see cure ). However, there are also legal transactions that were initially effective, but subsequently rendered ineffective by design rights. Then contracts can be challenging void if the declaration of avoidance ( § 143 BGB) with ground for avoidance (§ § 119 f, § 123 BGB) in the suspect period ( § 121, § 124 BGB) is emitted. Only by effectively to challenge the contract retroactively void ab initio is ("ex tunc "; § 142 para 1 BGB). However, without disputing the transaction remains in effect. When contesting reasons does the law error, fraud and illegal threat.

Relative ineffectiveness

If protection law aims only to protect certain people, it is a contract in violation Law business only ineffective against such persons; compared to all other groups of people however, it is legally binding and enforceable. So dispositions of the defendant on a plot are after registration of the reservation to the extent invalid, as it would defeat or impair a claim by the creditor on this property ( § 888 para 1 BGB). A legal transaction which, however, violates an absolute prohibition of sale ( eg § 3 Narcotics Act ), is to everyone, so absolutely void. The injury relative disposition or disposal prohibitions ( § 135, § 136 BGB) induces only relative ineffectiveness, that is, the transaction is only in relation to the protected persons ineffective in relation to others, however effective. Such is the hold over all other land register participants, except the beneficiary creditors effectively.

Nullity

If legal acts or declarations of intent have such serious defects that the law recognizes their right from the beginning has no legal effect, they are void. This nullity is only in a few cases, the law enumerates limited to, curable. The nullity is from the beginning ( " ab initio " ), regardless of the will of the parties and acts against anyone.

Nullity in civil law

A distinction is made according to whether defects in person, form or content available. These transactions are void from the beginning ( ab initio ) and can only rarely be cured. If the serious deficiency in the person of one of the parties founded, knows the law, only the law of nullity. So assigns to § 105 BGB, that the declaration of intent of an incompetent incurably void. This business unfit to be protected. In civil law is basically the form of freedom for legal transactions. Only in exceptional cases assigns the law to comply with certain functions (Proof, warning, reconnaissance or control function ) to a statutory form of the contract. These are writing, notarization and notarization. If these forms are not complied with, the contracts concluded are - with few exceptions - incurably void ( § 125 BGB). Thus, the land purchase contract ( § 311b BGB ) and the marriage contract must ( § 1410 BGB ) of the certification, for the consumer loan contract, the law written form before ( § 492 para 1 BGB). Absence in the latter essential information or the written form is not met, then the contract is void ( § 494 para 1 BGB). Likewise is loan mediation and before incurably void if the consumer has not or not sufficiently informed on pre Required Fields of mediator in text form (§ 655b para 2 BGB).

The nullity of a contract may, however, also result from its contents. So bogus transactions (§ 117 BGB), joke shops ( § 118 BGB), immoral or usurious contracts ( § 138 BGB) incurably void. This also applies to the secret reservation, provided the other part knows the subject ( § 116 sentence 2 BGB). A final part of the contract associated group of cases treated the nullity of contracts, are contrary to a statutory prohibition ( § 134 BGB). This assumes that individual contract passages or the entire contents of a prohibition law violated. There must be a breach of mandatory provisions of law. A violation of a law only leads to the nullity of the contract, if the nullity is expressly provided or required by the protective purpose. A contract between a thief and receiver of stolen goods is void because theft is punishable and this act is classified as a statutory prohibition. Prohibitions and therefore void certain agreements between undertakings, which are aimed at restricting competition (§ 1 GWB; cartel prohibition ).

Nullity in special regulations

See various special laws in certain cases for nullity consequences. Thus, an annual financial statement in accordance with § 256 AktG (except in the cases of § 173 para 3, § 234, § § 3 and § 235 para 2 AktG) void if, inter alia, by its content violated rules that exclusively or are given mainly to protect the creditors of the company ( § 256 paragraph 1 No. 1 German Stock Corporation Act; economic reality ). The resolution in a general meeting of a stock corporation may be void pursuant to § 241 German Stock Corporation Act, if it is for example not to agree with the essence of the corporation or injured by its content rules that are given exclusively or mainly for the protection of creditors or otherwise in the public interest ( § 241 No. 3 AktG).

Annulment of administrative acts

From the public law often is the administrative center of the criticism. An administrative act is void pursuant to § 44 Section 1 of the Administrative Procedure Act, if he is suffering from a particularly severe error and this is obviously a reasonable appraisal of all eligible circumstances. The cases referred to in § 44 paragraph 2 the Administrative Procedures Act in any case lead to nullity (so-called absolute grounds ): these are, for example, the absence of adopted authority (§ 44 para 2 No. 1 Administrative Procedures Act ) or the violation of an administrative act against good morals ( § 44 para 2 No. 6 of the Administrative Procedure Act ). Are administrative acts impracticable ( " the factual reasons no one can perform ," § 44 Section 2 No. 4 Administrative Procedures Act ), they are also null and void without further notice. However, comes in case of § 44 paragraph 3 Administrative Procedures Act, if appropriate a cure into consideration ( § 45 Administrative Procedures Act ), so that the nullity can be avoided. In less serious defects, the invalidity may be brought about by judicial remedy ( contestation, contradiction or redemption ).

Nullity of local transactions

The municipal law largely takes over the rules of civil procedure. So is determined in many municipal codes that legal transactions of the municipality, which require regulatory approval, without such approval are ineffective ( eg § 130 Municipal Code NRW). These provisions are to be construed as approval of title. Such regulatory approval reservations about municipal acts are a means of preventive state supervision. They aim to prevent acts acquire binding force, which are not in accordance in particular with certain legal requirements; in this type of supervision is therefore a particularly strong intervention in the local self-government. It is a form of state co-decision, which empowers the government to review not only the legality but also the appropriateness of the transaction.

Subject to approval include the change of the municipality name ( § 13 GemO ), seal / crest / flag (§ 14 GemO ), reduction of general reserves ( § 75 para 4 GemO ) or the household fuse concept ( § 76 para 2 GemO ). The regulatory approval does, even if it is granted to a civil transaction, an administrative act is that not part of, but condition of validity of the transaction is though, which is referred to the permit. The permit must be applied for each of the community. Until the granting of the right underlying business is rendered ineffective and binds the business partner until about the approval is decided or terminate the contract the parties. The approval allows for the transaction to take effect, with retroactive effect to the date of business commencement. Unless the law provides otherwise determined, is to decide on the approval, after due consideration, so that there is a trackable in the administrative courts entitled to the grant of a license only at the discretion injuries.

Invalidity risks also threaten local warranties that are subject to EC notification requirements. The local authority has to consider its own responsibility, whether the terms of guarantees and contracts with the requirements of Article 107, Article 108 correspond to the EC Treaty. If violate this notification, the aid community or warranty is void. Ground for annulment is the breach of a statutory prohibition ( § 134 BGB), because the Supreme Court classified the notification as a prohibition law.

Nullity of laws

The legislature may make mistakes in the enactment of ordinances or laws. In post-constitutional laws in the formal sense (ie below the Basic Law ), the Nullity only by the Federal Constitutional Court ( Bundesverfassungsgericht ) and the relevant state constitutional court can be pronounced ( rejection of monopoly). The rejection monopoly of constitutional jurisdiction means that only the Constitutional Court may declare a formal standard void and not every single court may overrule the will of the legislature. Therefore violate laws or ordinances against the Constitution, by way of judicial review proceedings or by constitutional challenge their (partial) invalidity may be brought about. The Constitutional Court must proceed with extreme caution, because it always represents a substantial interference with the freedom of the legislator in the out - force - reduction laws. The referral to the Constitutional Court should not become a means by which the defeated in the legislative proceedings may delay the effectiveness of a law. However, if the unconstitutionality of a law determined by the Constitutional Court, the concerned law is void ab initio ( § 78 Federal Constitutional Court Act ).

Healing

In certain cases, the Act provides that acts despite the presence of defects can be cured with the order of potency from the beginning. These deficiencies can therefore lose their relevance of, if the parties later realize a fact, behind which the legal protection purpose then withdraws. The Act hereby tries to maintain as possible also a deteriorated contracts, so that the contractual autonomy must be disturbed only in unavoidable situations. Often then the registration is sufficient in itself trivial contracts in a public register, or their fulfillment, to eliminate the invalidity. If the form void land purchase contract, the conveyance and subsequent registration in the land register, the nullity of the contract ( § 311b para 1 sentence 2 German Civil Code) is repealed. If the notarization requiring donation pledge before a formal defect, this cured by donation ( § 518 para 2 BGB) is. Is in the guarantee, the writing is not respected, this lack of form ( § 766 sentence 2 BGB ) will be cured by compliance (ie payment of the guarantor ).

The nullity of a resolution at the general meeting in accordance with § 242 AktG is cured by entry in the commercial register and the subsequent time period of three years. Invalidity of financial statements can be cured under the conditions of § 256 para 6 AktG.