Under the name of contestation different legal institutions are summarized, with which one can unilaterally eliminate a state law. As a highly effective legal challenge to the narrow, strict, often formal requirements is established.
- 3.1 contestation of public declarations of intent
- 3.2 contesting official or judicial decisions
Contesting private law declarations of intent
First and foremost is meant by challenging the regulated in the Civil Code of the same transaction through which an erroneous declaration of intent is eliminated retroactively, making the transaction, which was based on this erroneous declaration of intent pursuant to § 142 Section 1 BGB is to be regarded as null and void from the beginning ( ex tunc effect). The challenge is counted among the so-called pretty devastating objections, although this is controversial, and partly due to the ex tunc effect of avoidance rechtshindernde an objection is assumed. This challenge is a design based on law ( the right of appeal ); it must be explained, be so exercised.
General civil law and business law doctrine
Exercise of a Right to Appeal
A right of appeal is effectively exercised if the claimant contesting a ground for rescission has ( design right ) and discharges within the suspect period a declaration of avoidance ( design explanation).
Ground for avoidance
A ground for rescission, pursuant to the general part of the German Civil Code (BGB ) in the following cases:
- Declaration error: Lens declared and subjectively willed fall apart. ( I wanted to explain legally something else, I will choose a false declaration characters: prescribing, typos. ) - § 119 para 1 Var. 2 BGB.
- Content error: objective and subjective declared willed not fall apart, but the explanatory attaches Explained a different meaning than it is in general practice. ( I did not explain, for example, to sign a contract of sale in the assumption that it is a lease such a thing) - § 119 para 1 Var. 1 BGB.
- Transmission error ( you I wanted to tell you nothing or I wanted something not explain ) - § 120 BGB.
- Mistake about essential characteristics of the declaration object ( object of error is a person, thing, demand or right ), otherwise assets position ( I was about to explain, but not on such a crafted thing only applies to value-creating factors ) - § 119 Abs. 2 BGB.
- Wilful deception and illegal threat ( § 123 BGB).
Contestation is entitled to each of the erring, deceived or threatened, not his business partner.
Is generally not recognized by the civil law of the so-called design error. He is basically irrelevant. Such refers to reasons that triggered an explanation ( I said this because ... ) or consequences that are intended by the statement ( I explained this so ... ). For example, a stock purchase is not about why actionable because the buyer believes erroneously that the stock prices could only go up. The only statutory exception to the irrelevance of motive mistake a mistake as essential properties can be viewed. In a teaching contained in the literature, however, the error property is considered to be exceptionally significant motif mistake. According to this view, the error must be in accordance with § 119 para 2 BGB on a commercially essential matter related property, and be subjective and objectively significant. Is about the distinction of considerable property error from unremarkable design error within the law and literature a theory dispute.
Furthermore, the so-called "hidden calculation error" irrelevant because the calculation is only used to prepare a declaration of intent. According to the unanimous opinion of the literature and in contrast to the case law of the Supreme Court the same is true for the open calculation error, because the declarant is not to pass on the calculation risk to the recipient. Otherwise only if the calculation error is evident.
The guardian must challenge the suspect period currently in force ( immediately, one year, ten years ) comply. After the deadline, the transaction is finally effective.
According to § 124 BGB is the challenging of in accordance with § 123 BGB ( deceit or threat) can only be challengeable declaration of intent within a year. The period begins in the case of fraudulent misrepresentation on the date in which the contesting claimant discovered the deception, in the event of unlawful threat of the date on which the predicament ends.
The challenge, however, is entirely excluded, since if the statement of intention ten years have elapsed.
The limitation period is not a period of limitations but a cut-off period: In accordance with § 194 paragraph 1 BGB are only subject to claims of limitation. However, the challenge is a design right, not a claim. In addition, however, the challenge leads the statute of limitations for legal inhibition in the form of a permanent right to refuse performance, and thus not invalidate the claim, invalidate the claim. Significance of this distinction especially because the limitation period of § 124 BGB must be considered on its own initiative, the statute of limitations, however, must be asserted in a pending lawsuit.
Declaration of rescission
The challenge beneficiary has the choice of whether he wants to have the right business to apply despite the contestability or whether he ends by contesting its effectiveness. The challenge must be made by notice to the opposing party ( § 143 BGB). This is in a contract the other party, at a reception requiring statement of intent ( eg termination ) of the receiver and otherwise (eg in the competition on ) anyone who has attained on the basis of the legal transaction a legal advantage. A specific form is not required for the declaration of rescission. The disputing must include the word " challenge " do not use, it is sufficient that his statement reveals that he did not accept the transaction.
By effectively to challenge the transaction in principle retroactively ( ex tunc Latin ) is destroyed. It is therefore to be regarded as null and void from the beginning ( § 142 para 1 BGB). Exceptions to this reaction exist in the challenge of entering into the marriage ( § 1313 BGB ), in social and employment contracts. There the challenge acts only from the receipt of the declaration, ie only for the future (Latin ex nunc ). The reason given is that the rescission would already result in enforcement set employment contracts and partnership agreements to unwind problems. As such, these contracts for the past shall not be considered null and void. However, the challenge is still react on the date on which the employment relationship has been released from custody, because there are no more problems unwinding from that date.
The disputing is obliged to pay damages, unless the contractor knew the reason for the contestability of business or had to know ( § 122 BGB ) or willful deception or threat. Here, the party disputing, however, is not liable for the damage caused to the contractor by the non-fulfillment of the contested legal transaction ( non-performance loss, positive interest ), but only for the damage is that caused by confidence in the efficacy ( fidelity, negative interest ).
If necessary, also arise unjust enrichment claims under § § 812 et seq. Through the void legal basis (contract) services have been rendered wrongly, whose unwinding guarantees the law of unjust enrichment.
In family law, there are other legal requirements for a ground for rescission. So the family law complicates the challenge of a marriage (§ § 1313 et seq ), and procedural.
- See also: paternity dispute
In principle can also declarations of intent, addressed to conclude an employment contract be challenged. However, the right of appeal is hereby modified a little. Thus, the challenge does not like 121 BGB § happen immediately, but may be analogous to § 626 paragraph 2 BGB up to two weeks of becoming aware of the reason. The challenge does not ex tunc but ex nunc. The challenge, however, can be transferred back to the time of addition to reducing execution of the employment relationship, such as the date before the holiday. This has the advantage that the employer must pay no holiday pay.
See also: Right to Lie
The right of inheritance allows the contestation of a will also be due to a design error ( § 2078 para 2 BGB) and changed the circle of contesting claimants, in the sense that not the declarant testator is even contesting the right but only those who are good stead the abolition of testamentary disposition would come ( § 2080 BGB). These are logically third parties such as the legal heirs.
The Federal Court ruled that the rescission of a lease for office space for fraudulent misrepresentation even after transfer of rented premises and termination of the lease is allowed in addition to the termination.
Creditor protection and insolvency law
A claim is the right to appeal after the rescission law or the rules of the bankruptcy avoidance. It causes a believer damaging assets available is irrelevant; the new owner must submit to the enforcement in its assets acquired subject to appeal; he is liable for the debt of the debtor. This challenge is not a design law and must not be exercised, but can at once (possibly in court) to be enforced.
Contestation in public law
Contestation of public declarations of intent
To establish legal certainty, submitted in connection with a court case to the court for declarations progress of the proceedings ( procedural measures ) generally can not be appealed. So an acknowledgment for the defendant, for example, binding. An exception to this rule may be made only if the other side did not rely on the effectiveness of the process of action.
Although the conclusion of a settlement in the court proceedings is also a process of action, but also has substantive effect. It can be challenged under similar principles as other legal transactions because of this dual nature.
In public declarations of intent by which a management agreement is terminated, the provisions of the Civil Code on the challenge shall apply mutatis mutandis.
Challenge official or judicial decisions
From contestation is also called if the addressee of an administrative or judicial action against this decision, so inserts remedies or remedies.
Which subject to appeal, depends on the respective Entscheidungsart. For example, against an administrative contradiction ( in tax law objection ) to and appeals be permitted. Against a decision one usually goes before a complaint against a judgment appeal or revision. Some judicial measures are also incontestable.