German civil code Flashcards
What are the fundamental rights for business law in the german law system?
Freedom of association, Art. 9 GG
Freedom of occupation, Art. 12 GG
Guarantee of property, Art. 14 GG
General freedom of action, Art. 2 para 1 GG
What is the principle of abstraction and separation (Trennungs- und Abstraktionsprinzip) in the German civil code?
Legal relationships and obligations between individuals are distinct and separable from the specific assets involved.
Contracts of sale are thus divided into multiple contracts:
Contract of sale §433 BGB
Contract of transfer of property §929 BGB (item)
Contract of transfer of property §929 BGB (money)
Describe what offer and acceptance (invitation ad offerendum) refers to in the context of the German civil code.
- Offer and acceptance refers to the process by which a contract is formed under German civil code (BGB).
- Invitation ad offerendum is signal made to the public that one party is willing to enter a legal agreement under certain conditions
- An offer must be accepted exactly as it was made to be considered binding.
- Acceptance can be made either explicitly or implicitly through conduct, but it must match the terms of the offer.
- If the acceptance deviates from the offer, it is considered a counter-offer and the original offer is rejected.
- A contract is only formed once there has been an offer and an acceptance of that offer.
What does essentialia negotii refer to in the context of the German civil code?
Essentialia negotii are the essential terms of a contract:
Contracting parties
Object
Price
Describe the form requirements after §§ 125 and 126 ff. BGB.
Types: Agreed, text, written, electronic, notarial
- Contracts that do not comply with these requirements are still binding but may be more dificult to be enforced in court
- Contracts for the transfer of ownership of real property must be in writing and signed by the parties (§§ 125, 311 BGB)
- Contracts for the transfer of ownership of movable property must be in writing, but the parties can agree to dispense with the requirement (§ 126 BGB)
- Contracts for the performance of work that exceeds a certain value must be in writing and signed by the parties (§ 650 BGB)
- Other contracts may be made orally, in writing, or by conduct (§ 126 BGB)
What is the statue of limitations and which time limits apply after §§ 187, 188 BGB?
-Statute of Limitations refers to the time limit within which a legal claim must be brought.
- After §§ 187, 188 BGB, the time limit for legal claims is 3 years.
- The time limit starts from the date of the event giving rise to the claim (e.g., delivery of goods).
- purpose: legal peace
- does not occur automatically, must be invoked
Exceptions:
§438 - 2 years for claims for supplementary performance (Gewährleistung)
§548 - 6 month for claims after termination of lease agreement
§634a - 5 years for claims for construction defects in buildings
§193 - 30 years for any claims declared final by court
What are the differences between termination, withdrawal and revocation (start, duration, cost of withdrawal)?
Termination:
- it ends a contract immediately; initiated by one party giving notice to the other
- Example: A supplier terminates a contract with a customer due to the customer’s persistent payment defaults.
Withdrawal (Widerruf):
- consumer protection
- can be declared within 14d after receipt of the goods in text form
- Does not require statement of reason
- Example: A consumer withdraws from a purchase contract within the legally prescribed period due to a change of mind.
Revocation
- There is a right to revoke if other party fails to fulfill contract after an additional period for performance or cure
- Declaration of revokation §349
- Liable for restitution, return, or compensation (Wertersatz)
Describe the main characteristics of German sales law (Kaufrecht) after §§ 433 ff. BGB.
§433 BGB describes the contract of sale, undertaking to hand over an object/right/service (obligation of seller) for an agreed purchase price (obligation of buyer).
The German sales law also governs warranty rights, transfer of risk during a transaction, payment and performance obligations and the statute of limitations.
What does transfer of risk (Gerfahrenübergang) refer to in German sales law?
Refers to the point where transfer of risk from seller to buyer occurs in a transaction
Holschuld refers to the obligation of a buyer to accept the goods and pay the purchase price as per the terms of the contract.
Bringschuld refers to the obligation of a seller to deliver the goods to the buyer in accordance with the terms of the contract - This is the standard under German sales law (unless agreed upon otherwise)
Governed in §446 BGB
Which rules regarding warranty rights (Gewährleistung) apply in German sales law?
- Seller has obligation to deliver goods free from defects
- Warranty period is 2 years for used goods, and for new goods the statutory warranty period starts from delivery
- Buyer has to inform the seller of defects within 2 months after discovery of the defect
- Seller can choose to repair or replace the goods, or to refund the purchase price
- If the remedy fails, the buyer can claim reduction of the purchase price or withdraw from the contract.
Governed by §433 ff. BGB
What is the difference between a Verpflichtungs- and Verfügungsgeschäft?
Verpflichtungsgeschäft - Contract that places an obligation on one or more parties (e.g. contracts of sale, contracts to provide services)
Verfügungsgeschäft - Contract that immediately affects a right or a legal position (e.g. contracts that aim at including any action that directly transfers a subjective right or legal position)
Which styles are there for solving a case?
Opinion style - Results come in the end and is deducted (“consequently”)
Judgemental style - Result is at the beginning and is justified (“because”)
What are the major principles of the German civil code?
The freedom to conclude contracts (Abschlussfreiheit)
The freedom to decide the content of contracts (Inhalts- oder Gestaltungsfreiheit)
Principle of seperation and abstraction (Trennungs- und Abstraktionsprinzip)
Which kind of bilateral legal transactions exist?
Mutual (purchase, rental, employment)
Unilateral (Gift)
Imperfectly bilateral (loans)
