To obtain a road haulage license in Germany

June 25, 2021/in Transportation law

LEGAL+ NEWS

Transport law guide: Requirements for obtaining a road haulage license in Germany

The road haulage industry is subject to licensing for transports with motor vehicles with a gross vehicle weight of over 3.5 tons. The requirements to be met to obtain a road haulage license are outlined below.

Legal basis of the road haulage license

Most of the requirements follow directly from EU law, in particular Article 3 of Regulation (EC) No. 1071/2009. In Germany, Article 3 of the aforementioned regulation has been implemented in Section 3 of the Road Haulage Act (GüKG). § Section 3 GüKG reads:

“§ 3 Permit requirement

(1 ) Commercial road haulage is subject to authorization, unless otherwise provided for in directly applicable European Community law.

(2) The permit shall be issued to an entrepreneur whose company has its registered office in the

(EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51).

requirementsfor practicing the profession of road transport operator .

(…)”

Accordingly, the following requirements, which result directly from Art. 3 of Regulation (EC) No. 1071/2009, must be met:

Actual and permanent establishment in the EU
Reliability
Adequate financial capacity
Professional suitability

The required branch office must be located in Germany (Section 3 (2) sentence 1 GüKG). The person responsible for road haulage in the company, referred to as the transport manager since 4.12.2011, must meet the requirements of reliability and professional suitability on a permanent basis.

The above-mentioned requirements must always be substantiated by suitable evidence when applying in accordance with § 3 GüKG. The required application form can be downloaded from the websites of various competent administrative authorities.

How the requirements are to be fulfilled in detail and what applies to the individual permit, hearing and withdrawal/revocation procedures is regulated in the Professional Access Ordinance for Road Haulage (GBZugV) and in the corresponding administrative regulation (GüKVwV).

Branch office

A branch office in Germany is required.

The requirements to be met are set out in Art. 5 of Regulation (EC) No. 1071/2009:

“In order to comply with the requirement laid down in Article 3(1)(a), an undertaking in the Member State concerned shall

a)

have an establishment in the said Member State with premises where its main company documents are kept, in particular its accounting documents, personnel management documents, documents containing data on driving times and rest periods and any other documents to which the competent authority must have access in order to verify compliance with the conditions laid down in this Regulation. Member States may require that establishments on their territory also keep other documents available on their premises at all times;

b)

have at his disposal, after obtaining the registration, one or more vehicles which are his property or which are in his possession by virtue of any other right, such as a hire-purchase or hire or leasing contract, and which are registered in the Member State concerned or otherwise put into service in accordance with the legislation of that Member State;

c)

actually and permanently carry out its activities in respect of the vehicles referred to in point (b) at a permanent establishment situated in the Member State concerned, by means of the necessary administrative equipment and the appropriate technical equipment and facilities.”

The branch must have premises at the relevant location for continuous and permanent participation in business life and for the storage of business documents, carry out an activity as a road haulage company with the location and scheduling of vehicles and employed personnel, by persons authorized to act independently and familiar with the business transactions.

The branch must therefore meet the following requirements:

own premises
The storage there of essential accounting documents, personnel administration documents, documents containing data on driving and rest times, to which the authorities must have access as part of their supervisory duties.
Operation of vehicles via this branch. These can also be rented or leased.
Actual performance of road haulage activities at the place of establishment

Important:

Office space for file storage and occasional staff meetings without recognizable indications of regular use by employees is not sufficient (Administrative Court Aachen, judgment of 11.2.2016 – 2 L 901/15).

In the event of a dispute, the courts examine very strictly whether the external circumstances permit the assumption that it is actually a branch in the sense described above.

The Augsburg Administrative Court (judgment of 27.03.2012 – Au 3 K 11.1212), for example, examined the local/building law circumstances in detail in a case examined by this court and rejected the existence of a (branch) establishment on the following grounds, among others:

“(…) Frequent access to the alleged location of the branch office by truck is also prohibited for reasons of building law. According to the photographs presented at the hearing, the building in which the apartment of the deputy managing director of the plaintiff is located is in a general residential area within the meaning of Section 4 of the Building Utilization Ordinance. Even non-disturbing commercial enterprises are only permitted there as an exception. If the apartment was regularly accessed by trucks, the use as a Branch office inadmissible. (…)

All this only allows the conclusion that the plaintiff is only interested in formally having a branch in Germany in order to avoid restrictions in the transport business, … was only chosen because the managing director of the plaintiff owns an apartment there and thus no business premises had to be rented.”

After all, it is strongly recommended,

actually rent premises that legally and actually permit a road haulage company according to the local conditions,
to equip the premises technically in such a way that all administrative tasks of a road haulage company can be carried out there,
register at least one truck via the branch office
to carry out transportation from the place of establishment, at least to a certain extent.

Reliability

Section 2 of the GBZugV provides information on the required personal reliability. It states:

(1) The operator and the transport manager within the meaning of Article 4 of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51) are reliable within the meaning of Article 6 of Regulation (EC) No 1071/2009 if there are no facts indicating that

violate statutory provisions in the management of the company or

the operation of the company harms or endangers the general public

will.

(2) As a rule, the operator and the transport manager shall not have the requisite good repute if they have been convicted of a serious infringement of Community provisions within the meaning of Annex IV to Regulation (EC) No 1071/2009

have been convicted by final judgment or

a fine imposed on them has become incontestable.

(3) In addition, the operator and the transport manager may be unreliable in particular if they have been convicted by final judgment or if a fine imposed on them has become incontestable

for a serious infringement of Community rules within the meaning of point (b) of the third subparagraph of Article 6(1) of Regulation (EC) No 1071/2009 in one or more Member States of the European Union,
due to a serious violation of criminal law or
for a serious breach of
a) provisions of the Road Haulage Act or the ordinances based on this Act,
b) obligations under labor or social law,
c) regulations issued in the interests of traffic, operational or food safety, in particular against the provisions of the Road Traffic Act, the Road Traffic Regulations or the Road Traffic Licensing Regulations,
d) the tax obligations arising from entrepreneurial activity,
e) § 1 of the Compulsory Insurance Act of April 5, 1965 (BGBl. I p. 213), as amended,
f) environmental protection regulations, in particular waste and immission control legislation or against
g) provisions of commercial and insolvency law.

It is therefore necessary in particular

practicing the profession in accordance with the law and
the absence of final convictions for significant violations of national and Community law.

The bottom line is that there is no evidence that the management of the company disregards the applicable (national and European) regulations or that the general public is harmed or endangered.

Reliability is called into question, for example, in the case of the following infringements of relevant Community law (see list in Annex IV of Regulation (EC) 1071/2009):

Exceeding the maximum daily driving times by 50 % or more, the 6-day or 14-day maximum driving times by 25 % or more,
lack of tachographs or speed limiters,
Use of devices for fraudulent
Alteration or falsification of record sheets and downloaded data,
Driving vehicles that do not comply with the regulations and vehicles with serious defects, e.g. brakes and steering,
prohibited storage or prohibited transportation of dangerous goods with such a risk to human life and the environment that the vehicle is immobilized,
Transport of persons and goods without a valid driving license or by a company without a Community license
Use of counterfeit driver cards

Financial performance

According to Section 3 GBZugV, the entrepreneur is deemed to be financially capable if he fulfills the requirements of Art. 7 of Regulation (EC) 1071/2009. The national provision refers directly to the Community regulation, which contains the corresponding definition. Paragraph 1 states:

“To meet the requirement of Article 3(1)(c), a company must be able to meet its financial obligations at all times during the financial year. To this end, the undertaking shall demonstrate, on the basis of annual accounts audited by an auditor or a duly accredited person, that it has at least EUR 9000 in equity and reserves each year for one vehicle used and EUR 5000 for each additional vehicle used.”

The current value of the vehicles used cannot be taken into account when calculating equity, as they are operating resources (Hamburg OVG 16.9.2012 – 3 Bs 5/12).

When submitting the first application, the required equity must be proven by means of a corresponding equity certificate, e.g. from a tax advisor. In addition, a so-called clearance certificate from the tax office may be required despite the absence of a corresponding legal requirement.

Professional suitability

According to Section 4 GBZugV in conjunction with Art. Art. 8 of Regulation (EC) 1071/2009 if the so-called “transport manager” has the knowledge to manage a road haulage company in the areas listed in Annex I Part 1 of Regulation (EC) 1071/2009.

The subjects covered are civil law, commercial law, social law, tax law, commercial and financial management, access to the market, technical standards, technical operation and road safety, all of which relate to road haulage.

Proof must be provided in the form of an oral examination before an examination board of the relevant Chamber of Industry and Commerce.

According to current law, final examinations such as forwarding agent, road and rail transport clerk, transport specialist and in various courses of study as Diplom-Betriebswirt are regarded as equivalent (cf. in detail Annex 4 to the old version of the GBZugV).

Important:

Practitioners can also prove their professional aptitude through at least ten years of uninterrupted managerial activity in companies that operate road haulage in the EU (Section 8 (1) GBZugV).

Jetzt kontaktieren!

Traffic rider

The requirements of reliability and professional suitability described above must be met by the so-called traffic manager.

According to Art. 2 No. 5 of Regulation (EC) No. 1071/2009, a transport manager is “a natural person employed by an undertaking or, if that undertaking is a natural person, that person himself or, where appropriate, another natural person contractually appointed by that undertaking, who effectively and continuously directs the transport activities of that undertaking.”

According to Art. 4 Para. 1 of Regulation (EC) No. 1071/2009, the appointment of a transport manager within the meaning of Art. 2 No. 5 of Regulation (EC) No. 1071/2009 is mandatory in order to obtain a permit for commercial road haulage.

A “traffic manager” can only be someone who

actually and permanently manages the company’s transportation activities,
has a genuine connection with the company, for example as an employee, director, owner or shareholder, or manages the administrative affairs of the company or, if the company is a natural person, is that person himself or herself, and
has their permanent residence in the Community.

Important:

If required, it is possible to contractually appoint a third party who is not employed by the company as a transport manager.

This results from Art. 4 Para. 2 of Regulation (EC) No. 1071/2009, which also lists the requirements to be met. It is particularly important that the content of the duties assumed as a transport manager are precisely regulated in the required transport manager contract. In addition, the contracted person may not be employed as a transport manager in more than 4 companies.

Jetzt kontaktieren!

Do you have any questions?

LATEST ARTICLES

Present your case...Serious young judge sitting in the courtroom with a stern facial expression.

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Plenty of space on this one. An african-american woman showing you a USB stick.

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

EURO clauses – prevention of euro crisis scenarios

June 18, 2021/in Commercial law, Contract Law

LEGAL+ NEWS

EURO clauses: Preventing euro crisis scenarios

EURO clauses are still predominantly associated with the introduction of the euro. The following article deals with the unpleasant eventuality of the euro entering a crisis, e.g. associated with the exit of individual states from the eurozone. To prevent this eventuality, it is worth thinking about “post-EURO” clauses.

Problem description

Equivalence of performance and consideration is the cornerstone of every “good” contract. Now imagine the following: Supplier A undertakes to supply customer B with a complex industrial plant at a price of EUR 20 million. The final payment installment of 2 million euros is only due after completion and acceptance. At the time the contract is concluded, acceptance is not expected for another 2 years. Without much imagination, this leads to the question of how or whether it is actually ensured that EUR 2 million at the time the contract is concluded and EUR 2 million at the time of acceptance 2 years later are still (roughly) equivalent. The answer is: this is simply not guaranteed! The economic consequences of the corona crisis, which are currently not yet so much in focus due to the priority of health protection and which will probably also have a considerable impact on the euro for various reasons, make the question of how the supplier can contractually protect itself against currency risks and thus an imminent decline in the value of the consideration to which it is contractually entitled appear highly topical. The following article first classifies the problem from a legal perspective and provides an overview of some possible solutions under contract law.

Necessity of contractual provisions

The economic consequences mentioned above, which the coronavirus crisis is yet to reveal, threaten the stability of the euro in many respects. If it were only a case of above-average inflation, which is probably to be expected, this would be a best-case scenario. A politically motivated painful devaluation, the exit of individual countries from the eurozone or even a break-up of the monetary union cannot be ruled out. If a contract is affected by this scenario, the question arises for the supplier as to whether it is legally protected against the resulting devaluation of its consideration, which is based on a specific euro amount.

One could think of a disturbance of the basis of the contract according to § 313 BGB. According to this, an adjustment of a contract can be demanded if

“(…) circumstances that have become the basis of the contract have changed seriously after the conclusion of the contract and the parties would not have concluded the contract or would have concluded it with different content if they had foreseen this change, (…)”

In the case of the currency risks discussed here, a claim for adjustment is likely to fail in most cases due to a lack of predictability. The risks surrounding the eurozone have been a topic of fluctuating intensity for a long time.

In the event of the withdrawal of individual euro states or the termination of the monetary union, Section 313 of the German Civil Code is also likely to prevent the legislator from stipulating the principle of contractual continuity, as it did when the euro was introduced. For example, when the euro was introduced, Article 3 of Council Regulation (EC) No. 1103/97 of June 17, 1997 stipulated the following:

“The introduction of the euro shall not have the effect of modifying any provision of any legal instrument or of discharging any debt, nor shall it justify the non-performance of any legal obligation, nor shall it give any party the right to modify or terminate any legal instrument unilaterally. This provision is subject to any agreement between the parties.”

Interim result on EURO clauses

As already mentioned at the beginning, the supplier as a creditor is not protected against the risk of a devaluation of money and the associated disruption of the equivalence relationship
between performance (= delivery) and consideration (= monetary payment). He should therefore look for ways to protect himself contractually against this.

Forms of permissible contractual clauses

Now that it has been worked out that the supplier, as a creditor, is not easily protected against the risks associated with a “real” euro crisis, the question arises as to how it can contractually prevent this with its business partner.

Price adjustment clauses

At first glance, automatic price adjustment clauses appear to be the method of choice. With such clauses, the price is automatically adjusted based on a referenced index (e.g. consumer price index).

It is true that such value protection clauses are recognized in principle by the highest courts. Unfortunately, however, the legislator has placed very strict limits on this solution. In particular, automatic price adjustment is prohibited. These include the Price Clause Act and the law on general terms and conditions. According to the Price Clause Act, there is a so-called ban on indexation, which generally prohibits the agreement of an automatic price adjustment, see Section 1 (1) of the Price Clause Act:

“The amount of monetary debts may not be determined directly and automatically by the price or value of other goods or services that are not comparable with the agreed goods or services.”

The background to this is that otherwise there would be fears that automatic price adjustment clauses could drive unwanted inflation in an uncontrolled manner.

However, the law provides for exceptions that allow a (non-automatic) price adjustment, cf. section 1 (2) of the Price Clause Act:

(2) The prohibition under paragraph 1 shall not apply to clauses,

1. which leave a margin of discretion with regard to the extent of the change in the amount owed, which makes it possible to determine the new amount of the monetary debt in accordance with principles of equity (performance reservation clauses),
2. in which the goods or services placed in relation to each other are essentially similar or at least comparable (tension clauses),
3. according to which the amount owed is made dependent on the development of the prices or values of goods or services to the extent that these directly influence the creditor’s cost price for the provision of the consideration (cost element clauses),
4. which can only lead to a reduction of the monetary debt

Of these exceptions, the performance reservation clauses and the tension clauses are of particular interest.

Instead of a – prohibited – automatic price adjustment, permissible performance reservation clauses provide that the entitled party may redetermine the price at its discretion if the agreed conditions are met (in particular a change in the reference value, occurrence of a certain event). It should be obvious to everyone that such a unilateral right of determination (Section 315 BGB) quickly raises legal concerns. This is where the law on general terms and conditions may quickly come into play. In its ruling of May 9, 2012 (case no. XII ZR 79/10), the Federal Court of Justice (BGH) stated the fundamental permissibility and justification of performance reservation clauses:

“According to the case law of the BGH, price change clauses are a suitable and recognized instrument for maintaining the balance between price and performance in long-term contractual relationships, especially those that are based on the exchange of services. This is because they serve, on the one hand, to relieve the user of the risk of long-term calculation and to secure his profit margin despite subsequent cost increases that burden him, and, on the other hand, to protect the contractual partner from the user attempting to absorb possible future cost increases by risk surcharges as a precautionary measure at the time the contract is concluded (…).

The interest of the contractual partner of the user of a price change clause in being protected against price adjustments that go beyond the maintenance of the originally agreed equivalence ratio must be taken into account (see BGHZ 94, BGHZ Vol. 94 Page 355 = NJW 1985, NJW Year 1985 Page 2270; BGHZ 158, BGHZ Vol. 158 Page 149 = NJW 2004, NJW Year 2004 Page 1588 [NJW Year 2004 1590]; in each case with further references). Nachw.).”

According to the case law of the Federal Court of Justice, a legitimate interest of the beneficiary of the clause and sufficient specification of the conditions for the right of adjustment are required and indispensable in order to adequately protect the interests of the contractual partner and thus to ensure that they are protected by the GTC. It must be sufficiently clear to the contractual partner what is in store for them. The BGH stated this in its ruling of November 25, 2015 (case no. VIII ZR 360/14):

“(…) However, according to Section 307 I 2 BGB, an unreasonable disadvantage to the contractual partner within the meaning of Section 307 I 1 BGB can also result from the fact that a provision in the General Terms and Conditions is not clear and comprehensible. In accordance with the principles of good faith, the user of general terms and conditions is therefore obliged to present the rights and obligations of his contractual partners as clearly and transparently as possible and to allow economic disadvantages and burdens to be recognized to the extent that this can be demanded under the circumstances (…)”

Price adjustment clauses refer to a specific index that relates to goods comparable to the contractual product. In order to ensure the effectiveness of the clause, the provision must be sufficiently specific and satisfy the criterion of comparability. “Comparability” requires that the reference goods are similar or at least comparable in nature. The relationship between the monetary debt and the reference value must be similar “according to common perception”. The reference value must be peculiar to the debt to be secured and must be of the same nature. After all, it is a question of evaluation, so that particular caution is required when drafting a corresponding clause in order to minimize the risk of invalidity.

Renegotiation clauses

The uncertainties described above in the contractual formulation of a price adjustment clause can be avoided by a pure renegotiation clause.

A renegotiation clause can be used to agree that the parties are obliged to renegotiate in the event of a significant change in circumstances – in this case, the monetary value. There is therefore no unilateral right to determine performance, but “only” the obligation of both parties to renegotiate the original price. The great advantage of such a provision is that its effectiveness can hardly be called into question. Appropriate wording of the clause can largely ensure that the contractual partner cannot completely block a price adjustment.

Conclusion on (post) EURO clauses

The level of the euro risk described above is difficult to estimate. A “post-EURO” clause for value protection can eliminate this risk within the framework described. As an entrepreneur, you have one less thing to worry about.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

Agreement of obligations to keep free

June 1, 2021/in Commercial law, Contract Law

LEGAL+ NEWS

The agreement of indemnification obligations - an underestimated instrument of contract law

The contractual agreement of hold harmless obligations is still a rarely used contractual instrument. However, such indemnity agreements can be very helpful, especially in multi-party constellations. One particularly relevant example is in the area of very complex and therefore contentious plant construction. Here, indemnity agreements can significantly improve the typically unpleasant position of the general contractor vis-à-vis the client and subcontractor when it comes to the trades of its subcontractors.

The author would like to inform the interested public about this in the following article.

The problem: The “sandwich position” of the general contractor

When it comes to the trades of its subcontractors, the general contractor is to a certain extent “caught between two stools”.

If there is a problem that can be traced back to a subcontractor’s trade, the problem becomes easily visible:

The general contractor has two contractual partners, the client and the subcontractor. Now imagine the following, not uncommon constellation:

The client confronts the general contractor with a notice of defects relating to a subcontractor’s work. From the client’s point of view, the general contractor, as its sole contractual partner, is responsible for the defect. From the general contractor’s point of view, the situation is different, as the subcontractor owes it a defect-free delivery. Consequently, the general contractor will pass this notice of defects on to the subcontractor concerned. In the (rare) ideal case, there is agreement on the defect and the subcontractor will rectify the defect to everyone’s satisfaction. But what happens if the subcontractor goes on strike and rejects the existence of a defect? In these cases, the agreement on hold harmless obligations between the general contractor and subcontractor can help.

What does keeping free mean?

One of the reasons for the (supposed) vagueness of the term “freehold” is probably that, as mentioned at the beginning, freehold agreements are still rather rare today.

In fact, the Federal Court of Justice (BGH) has already dealt extensively and meaningfully with the high practical significance of the assumption of duties to hold harmless

According to this case law of the BGH, which can be described as established, the duty to maintain availability is very far-reaching (see only BGH, judgment of 15.12.2010, ref. VIII ZR 86/09, para. 12). Thus, according to the aforementioned ruling of the BGH, every duty to keep property free includes

“(…) in principle also the duty to defend against unfounded claims of third parties (Senate judgment of June 24, 1970 – VIII ZR 268/67, NJW 1970, 1594 under II 1 b; BGH, judgments of January 19, 1983 – IVa ZR 116/81, WM 1983, 387 under 2 a; of April 19, 2002 – V ZR 3/01, WM 2002, 1358 under II 3; of October 24, 2002 – IX ZR 355/00, BGHZ 152, 246, 255).

The BGH explained its reasoning:

“(….) This is because the assumption of an indemnification obligation is typically intended to relieve the indemnified party of any risk of a claim by third parties and, in particular, not to be exposed to the risk of being sued for a justified third-party claim or to fulfill an unfounded claim in a misjudgment of the factual and legal situation and to have this held against them as their own misconduct (Senate judgment of June 24, 1970 – VIII ZR 268/67, loc. cit. under II 1 b, 2; BGH, judgment of April 19, 2002 – V ZR 3/01, loc. cit.).”

This means:

The party obligated to indemnify must generally relieve the indemnified party of any risk of a claim by a third party and, if necessary, also assume the defense against such a claim.

In the case of an unrestricted duty to indemnify, the indemnified party can therefore expect that the party obliged to indemnify will, so to speak, relieve it of all worries relating to the claims of the third parties concerned.

Consequences of violating the duty to maintain freedom

If the party obligated to indemnify violates the indemnification obligation it has assumed, the important question arises as to what reaction options arise for the beneficiary.

Indemnification claims are not primarily aimed at payment. The indemnified party can therefore not initially demand payment to itself. Conversely, the party obliged to indemnify cannot fulfill its obligation by paying the indemnified party.

However, the indemnification claim can be converted into a payment claim. This requires an unsuccessful deadline to be set for the fulfillment of the primary indemnification obligation. If the party obliged to indemnify seriously and definitively refuses the required indemnification, the claim for indemnification is converted into a claim for payment in accordance with the established case law of the BGH.

If the party obliged to indemnify has breached its obligation to indemnify, e.g. by failing to fulfill its obligation on time, the indemnified party is entitled to claim damages in accordance with Sections 280 (1) and 286 BGB. This claim will at least be for compensation for what the indemnified party had to pay to the third party as a result of the breach of duty by the indemnified party.

It is important that the party to be indemnified has given the party obliged to indemnify sufficient opportunity to examine and, if necessary, defend against the claim before making a payment to the third party. If he has done this, the party obliged to indemnify is no longer entitled to object that the party obliged to indemnify has wrongly paid the third party. This is because, due to the breach of his indemnification obligations, he himself is responsible for the fact that the party to be indemnified had to pay the third party.

Particularly relevant: Effects of the indemnification claim on the indemnifying party’s own payment obligations towards the indemnified party

If the party obliged to indemnify breaches its indemnification obligation and thereby exposes the indemnified party to the risks against which it is supposed to protect,

the question arises, which is particularly relevant in general contractor cases, as to what effect this breach of the indemnification obligation has on any outstanding remuneration of the indemnified party (= general contractor) vis-à-vis the party obliged to indemnify (= subcontractor). In these cases, it will usually be the case that the client (= the third party) in turn withholds remuneration from the general contractor.

A contractual obligation to remain free in general contractor constellations under construction law

must, in implementation of the BGH case law cited above, also include the retention of the third party. This is because, according to established BGH case law, retention means keeping free,

- to relieve the indemnified party of any risk of claims by third parties, and

- Accordingly, if necessary, to assume the defense against such a claim,

then, of course, the person obliged to grant the exemption must also submit a corresponding

prevent or suitably defend against the retention of this third party.

As a result, the party to be indemnified can therefore pass on the third party’s retentions, which are at least also based on the breach of the indemnification obligations, to the party obliged to indemnify.

Conclusion on the meaning and purpose of retention obligations

Indemnification claims are a far-reaching and flexible instrument, especially for general contractors, in order to shift a significant part of the risk they typically assume to the subcontractors involved.
[/av_textblock]

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

Recognition and enforceability of foreign judgments

August 22, 2020/in Commercial law, International procedural law, Nicht kategorisiert

LEGAL+ NEWS

Recognition and enforceability of foreign judgments

The question of the recognition and enforceability of foreign judgments in Germany is of great practical relevance: If a foreign (non-European) business partner threatens to file a lawsuit in his home country in the event of a conflict, a decision must be made as to whether or not a defense against a possible lawsuit abroad makes sense. On the question of how to deal with a foreign lawsuit, please also read my Guide “Action from abroad – What to do?”!

In the following, we will examine what a foreign judgment that has already been issued means for the German defendant. If such a judgment is imminent or has already been issued, the main question for the German defendant is whether and under what conditions he is threatened with enforcement of this judgment. This is the subject of the following article. Due to the very advanced Europeanization of the law and the resulting peculiarities in the EU area, the article deals exclusively with judgments from non-EU countries.

Starting point: Necessity of a recognition procedure

Unless otherwise regulated by special international agreements, a foreign judgment is initially worth nothing in Germany.

A foreign creditor who wishes to take enforcement measures in Germany against his German debtor on the basis of a judgment obtained in his home country must first apply to the competent German court in order to have the foreign judgment declared enforceable in a separate procedure. This is standardized in Section 722 (1) ZPO:

“Enforcement from the judgment of a foreign court shall only take place if its admissibility has been declared by an enforcement judgment.”

Only a successfully obtained enforcement judgment (cf. Section 723 ZPO) leads to the enforceability of the foreign judgment in Germany.

The above means:

From a German perspective, a reaction to an action brought abroad only appears appropriate if any judgment could also be enforced in Germany. Otherwise, the judgment would ultimately be worthless, at least if the German defendant has no assets in the plaintiff’s country that could be accessed.

Grounds for non-recognition to be examined by the German court

As explained above, the enforceability of a foreign judgment in Germany presupposes that it can be recognized in Germany. Recognizability is reviewed ex officio by the German court in the above-mentioned enforceability proceedings pursuant to Sections 722 and 723 ZPO.

In the absence of relevant bilateral agreements between Germany and the respective claimant state, the general rules of international law apply to the eligibility for recognition.

In particular, the eligibility for recognition must be measured against Section 328 (1) ZPO:

“(1) The recognition of the judgment of a foreign court is excluded:

if the courts of the state to which the foreign court belongs do not have jurisdiction under German law;
if the defendant, who did not enter an appearance and invokes this, was not duly served with the document instituting the proceedings or was not served in sufficient time to enable him to defend himself;
if the judgment is irreconcilable with an earlier foreign judgment issued here or to be recognized, or if the proceedings on which it is based are irreconcilable with proceedings that were previously pending here;
if the recognition of the judgment leads to a result that is manifestly incompatible with fundamental principles of German law, in particular if the recognition is incompatible with fundamental rights;
if reciprocity is not guaranteed”

Accordingly, a foreign judgment must be refused recognition in the following cases:

Lack of jurisdiction of the foreign court

The objection to jurisdiction is always the closest aspect that could argue against recognizability. This is because, internationally, the principle that an action must be brought at the defendant’s place of residence or business applies in cases of doubt. Consequently, the jurisdiction of the foreign court for an action against a German defendant would have to result from a special place of jurisdiction or an effective jurisdiction agreement.

No proper service (violation of the so-called right to be heard)

The objection that the foreign action has not been duly served is also worth examining. This requires, for example, that the German defendant must have had sufficient opportunity to defend himself properly against the action. As case law interprets this requirement very narrowly, this objection usually only helps in extreme cases, e.g. if there are only a few days between service on the German defendant and the decision date abroad, which should be rare.

In addition, a translation of the action into German is generally required. In most cases, this follows from the Hague Service Convention of November 15, 1965, to which a large majority of countries in addition to Germany have signed up.

On the subject of the effectiveness of service, please also read my article “Action from abroad – service effective?”.

Incompatibility with another court decision

The objection that a domestic court decision is incompatible with the recognition of the foreign decision is also very relevant in practice and therefore significant.

This applies in particular in the event of the earlier lis pendens of domestic proceedings with the identical subject matter of the dispute. “Lis pendens” means the time at which a validly filed action is received by the defendant with legal effect. The time of lis pendens abroad is determined by foreign law. Whether the foreign court was aware of the domestic proceedings is irrelevant.

Please also read my separate article on this constellation “The negative declaratory action to prevent a foreign action“.

By the way:

The priority of the domestic judgment applies even if the domestic judgment was issued despite the foreign proceedings having been pending earlier. Domestic judgments are therefore always barred, even if they should not have been issued at all.

Incompatibility with the so-called ordre-public

Finally, the so-called ordre public must be observed. This concerns the compatibility of the foreign judgment in question with the fundamental principles of German law. If a foreign judgment is so contrary to fundamental German principles that it would seem almost intolerable to declare such a judgment enforceable in Germany, then it must be refused recognition.

The above applies in particular to violations of fundamental rights. Other examples of judgments that violate German public policy are those based on procedural fraud or judgments based on gambling or betting debts.

Lack of guarantee of so-called reciprocity

Another mandatory requirement for recognition is the so-called “guarantee of reciprocity” in relation to the state of judgment in question.

“Reciprocity” means that the recognition and enforcement of a German judgment in the foreign state in question should not encounter significantly greater difficulties than, conversely, the recognition and enforcement of a comparable foreign judgment in Germany. In short, the point is that the “rules of the game” must be more or less the same. After all, it is not acceptable for Germany to recognize a judgment from a country that, conversely, refuses to recognize German judgments or only grants recognition under considerably more difficult conditions.

The above definition leads to the following problem: The question of so-called reciprocity can only be answered by looking at the actual judicial practice of both countries. This practice is constantly in flux, so that this question must be examined separately in each specific case.

Consequences of not defending against the foreign action: Limitation of defense options in the enforceability declaration procedure

As already explained in the introduction, the aforementioned requirements for the recognition of foreign judgments are already of significance when the German defendant decides whether he should defend himself against the action at all.

In principle, the German defendant is free to decide whether to take up the “defense at a distance” – accepting (perhaps) unnecessary and high costs.

It should be noted that substantive objections to the claim must generally be raised in the substantive action proceedings. However, according to the case law of the BGH, this does not generally apply; in particular, it is still possible to raise the objection of procedural fraud in recognition proceedings. The BGH stated this in its ruling of 29.04.1999 (case no. X ZR 263/97):

“In proceedings for a declaration of enforceability, supplementary factual submissions by the parties are admissible in any case insofar as a violation of Section 328 (1) no. 4 of the German Code of Civil Procedure (ZPO) is to be inferred from the manner in which the judgment to be recognized was obtained. This is not precluded by the principle that fraudulent procurement of a foreign judgment cannot be established with the same evidence that a defendant has already used or could have used in the original proceedings (BGH, decision of September 19, 1977 – BGH file number VIIIZR12075 VIII ZR 120/75, NJW 1978, NJW year 1978 page 1114, NJW year 1978 page 1115). This principle applies if a defendant actually defends himself before the court of the first state. In contrast, both Section 328 (1) No. 2 and No. 4 ZPO leave the defendant domiciled in Germany free to enter an appearance abroad at all. If he takes the risk of being convicted abroad, he accepts the aggravation of only being able to assert narrowly limited means of defense in the recognition proceedings. In any case, however, the fraud defense is not cut off.”

Foreign judgments – conclusion and recommendation

The above summary shows that there are various obstacles to the recognition and thus enforceability of foreign judgments in Germany. As a result, German economic operators who find themselves threatened with a legal dispute abroad will find that the appropriate decision on how to deal with the respective conflict depends not only on the purely substantive legal situation, but also on procedural issues.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

LEGAL+ meets Legal Tech: LEGAL+ starts cooperation with BlockAxs

July 4, 2020/in Contract Law

LEGAL+ NEWS

LEGAL+ meets Legal Tech: LEGAL+ starts cooperation with BlockAxs

Legal+ is now relying on legal tech in contract law and the intelligent, artificial intelligence-based digital contract management solution ContrAxs:

ContrAxs maps the entire life cycle of legal documents. Documents can be innovatively created, quickly and innovatively negotiated, digitally signed, automatically analyzed and finally managed through smart visualization.

For Legal+’s clients, this means greater security and efficiency when drawing up, negotiating, signing and managing contracts. By using the software, Legal+ expects faster processes, more efficient workflows and simplified processing of contract documents with clients.

We are convinced that the use of software from the field of artificial intelligence will further improve our advisory services for our clients. We are convinced that our clients will be able to enjoy a completely new way of working together in contract management.

About BlockAxs GmbH:

BlockAxs GmbH(https://blockaxs.com), based in Berlin, is a German legal tech start-up.

The company focuses on the development of a contract management system for the creation, negotiation and effective digital signature of contracts. BlockAxs combines legal know-how with disruptive technology. The team behind BlockAxs consists mainly of lawyers and computer scientists. Working closely together, they create high-tech modules that speed up and, above all, improve the quality of the day-to-day work of lawyers.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

Corona and contract law: Disruption of contracts

April 5, 2020/in Commercial law, Contract Law, Liability law

LEGAL+ NEWS

Corona and contract law: Disruption of contracts due to the coronavirus

The coronavirus is forcing countries around the world to take drastic measures to counter the spread of the virus. This is having a serious impact on contract law. Many of these measures mean that contracts can no longer be fulfilled by at least one party. The cases affected are countless. Some examples are

the supply contract that cannot be serviced,
the commercial tenancy agreement, which can no longer be fulfilled by the tenant due to a lack of turnover,
the vacation trip that has to be canceled by the organizer or service provider,
the court settlement, which has lost its basis due to the economic consequences of the coronavirus crisis and can no longer be (reasonably) fulfilled,
etc.

The list of examples could be continued almost endlessly. In each case, the question arises as to how the respective situation can be resolved under contract law. The buzzword on everyone’s lips these days is “force majeure”, although this in itself is of little help. For example, it seems questionable whether the emergence of the coronavirus can even be classified as a force majeure event.

The following article is not intended to and cannot offer a solution for individual cases. Rather, it presents legal approaches that can provide a solution in individual cases. The discussion is limited to cases where the respective contract contains no or only inadequate provisions.

Consequences of the coronavirus for current contracts – case groups

Various scenarios can be considered as a result of the coronavirus. The three main cases are as follows:

The contract cannot be definitively fulfilled by one of the parties (examples: flight cancellation, concert cancellation, cancellation of trade fairs, etc.).
The fulfillment of the contract is temporarily impeded (prominent example: Tenant can temporarily no longer pay commercial rent due to lack of turnover).
A contract can still be fulfilled, but its execution no longer appears reasonable for at least one party due to the effects of the coronavirus.

Corona and contract law: Relevant basic legal principles

When evaluating each individual case, it is helpful to first consider the following basic legal principles.

“pacta sunt servanda” – principle of contractual fidelity

The highest and most general basic principle is contractual compliance. Contracts must always be complied with (“pacta sunt servanda”).

Difficulties in the provision of services that arise after the conclusion of the contract and have not been considered or taken into account do not change the obligation to perform. Exceptions to this therefore require special justification.

“do ut des” principle for mutual contracts – Section 326 BGB

In the case of reciprocal contracts, the impossibility of performance by one party generally results in that party being released from its obligation to perform. At the same time, however, it also loses its claim to consideration. This occurs in § Section 326 (1) sentence 1 BGB expressed:

“If the debtor is not required to perform pursuant to section 275 (1) to (3), the claim to consideration shall lapse (…)”

Supplementary interpretation of the contract and disruption of the basis of the transaction

If the contract in question contains a loophole regarding the circumstance in question, which can be closed by (supplementary) interpretation of the contract in accordance with the principles of determining the hypothetical will of the parties (Sections 133, 157, 242 BGB), this solution approach always takes precedence over any “emergency instruments” such as, in particular, interference with the basis of the contract in accordance with Section 313 BGB.

In case law, it is rightly emphasized time and again that a clear distinction between supplementary contract interpretation and the institute of interference with the basis of the contract is hardly possible.

In any case, the legal provision made must always be given priority. In the legal literature (see Flume, BGB AT II, Das Rechtsgeschäft, 4th edition, 1992, page 326 f.), it is correctly pointed out that the interpretation of a contract cannot have the purpose of deriving a legal effect from a legal transaction.

“unfair” contract into a “fair” one,
or

“… to correct the forgetfulness or carelessness of a contracting party in the formulation of a legal transaction by subsequently introducing into the contract, for the benefit of that contracting party, provisions which, if he had been well advised, he would have made the subject of the contract, but which he did not make the subject of the contract.”

It follows from this correct insight alone that a hypothetical will of the parties to be determined must take precedence over a “general weighing of interests” on the basis of a preliminary understanding of the judge, which determines an adjustment of the contract according to the principles of the basis of the transaction.

Corona and contract law – Possible solutions for the above-mentioned case groups

Taking into account the principles and legal instruments summarized above, the following solutions are possible.

Corona and contract law – Case 1: A contract cannot be definitively fulfilled by one party

In the absence of a contractual provision to the contrary, the solution in case constellation 1 should usually be clear:

The contractual partner who is ultimately unable to perform due to force majeure is released from its obligation to perform, Section 275 (1) BGB. As a result, he loses the right to the agreed consideration (= as a rule: remuneration), Section 326 (1) sentence 1 BGB. In the absence of fault, claims for damages on the part of the creditor are generally out of the question.

Corona and contract law – Case 2: A contract cannot be fulfilled temporarily

The situation is more complex if there is no so-called firm deal and the service affected by the force majeure can probably be made up for later:

The advantage of agreeing force majeure clauses, in which it is regularly agreed how situations are to be dealt with, is particularly evident in this frequently encountered constellation.

Primary solution approach: Supplementary contract interpretation

If this is not the case, the supplementary interpretation of the contract comes into play as described above. Contracts often contain general agreements from which special duties of loyalty and/or cooperation can be derived. This detour often leads to results that are expressly provided for in force majeure clauses.

The obligation to make joint efforts to limit damage on both sides should be mentioned in particular. Mutual claims for damages are likely to be regularly excluded in the absence of fault, even without a corresponding contractual provision.

If necessary: recourse to the principles of frustration of contract

It is more difficult to assess the question of when the debtor’s obligation to perform finally ceases, with the result that the other party is also finally not required to perform. In § Section 313 (1) BGB it says:

“If circumstances that have become the basis of the contract have changed significantly after the contract was concluded and

the parties would not have concluded the contract or would have concluded it with different content if they had foreseen this change,

an adjustment to the contract may be demanded if one party cannot reasonably be expected to adhere to the unchanged contract, taking into account all circumstances of the individual case, in particular the contractual or statutory distribution of risk.”

In addition, the right to refuse performance under Section 275 (2) BGB also offers help in finding a solution:

“The debtor may refuse performance if this requires an effort that is grossly disproportionate to the creditor’s interest in performance, taking into account the content of the obligation and the requirements of good faith. When determining the efforts to be expected of the debtor, it must also be taken into account whether the debtor is responsible for the impediment to performance.”

In the interplay of the above statutory provisions, the debtor concerned is likely to have a claim to amicable termination of the contract if it is not foreseeable that the impediment to performance will cease to exist. this is based on the fact that the debtor cannot reasonably be expected to adhere to the originally agreed performance obligations.

Liability for damages in the event of non-performance?

However, this does not answer the question of whether the creditor is entitled to compensation for the “release” of the debtor from his obligation to perform. The fact that the debtor is not at fault speaks against this. The fact that the service can still be provided in principle and the lack of a contractual provision tends to indicate that the debtor bears the risk in question (pandemic) speaks in favor of this. It should not be forgotten that the risk in question is not beyond all probability. It is not without reason that force majeure clauses are the rule rather than the exception in contract law.

After all, the respective circumstances of the individual case are likely to be decisive.

Corona and contract law – Case 3: A contract can still be fulfilled, but its execution no longer seems reasonable for one party.

The case constellation according to which

a contract can still be fulfilled at a later date despite coronavirus restrictions,
its (later) implementation no longer appears reasonable for at least one party,

shows in particular how important contractual clauses that take contingencies such as “Corona” into account can be. If this is lacking, Section 275 (2) BGB, which is based on the principle of good faith and also on whether there would be a “gross disproportion to the creditor’s interest in performance” in the event of performance, helps again.

In the specific case, it would therefore have to be examined whether the debtor concerned, for whom the provision of services would be possible but significantly more difficult as a result of the corona effects, can successfully invoke the aforementioned right to refuse performance under Section 275 (2) BGB.

Conclusion on coronavirus in contract law: Disruptions to contracts as a result of the coronavirus usually require a case-by-case assessment

The possible factual constellations are almost endless. The law does not provide any model solutions, and even in the case of force majeure clauses, a specific solution is unlikely to be “obvious”. In most cases, a solution can only be found by carefully examining all the circumstances of the individual case. This has now also been confirmed by the Federal Court of Justice in the first Corona rulings, see this article.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

Bundestag passes massive restrictions on freedom of contract

January 27, 2020/in Contract Law

LEGAL+ NEWS

Good night, freedom of contract - Bundestag passes massive restrictions on freedom of contract

The Bundestag passes a massive restriction on contractual freedom. The Federal Ministry of Justice has thus prevailed with its plan to limit the terms of consumer contracts to a maximum of one year.

Read my article from September 6, 2019 on this now serious legislative proposal, especially with regard to the resulting highly questionable restrictions on contractual freedom.

You can download the draft law passed by the Bundestag here.

The bill to restrict freedom of contract

As I commented in my article from September 6, 2019, the (further) restriction on the possibility of concluding contracts with a commitment period of at least two years that has now been adopted represents a massive curtailment of contractual freedom. There is also no justification for this in the draft bill now before us. On the contrary, it reveals a considerable misunderstanding of freedom of contract and its positive significance for consumers and the economy. It also continues the political line of denying consumers their maturity. Significantly, the draft bill states:

“(…) In many areas where open-ended contracts used to be common, consumers are now often only offered contracts with a two-year term on good terms, which are automatically renewed if the consumer does not terminate them in good time. The restrictions on contract terms that were previously in place are no longer appropriate. The long contract commitment inhibits consumers from switching to another provider and thus competition. The contract extension clauses are overlooked or forgotten by consumers. By limiting the term to one year, shortening the automatic renewal period and providing a shorter notice period of one month, the aim is to give consumers more freedom of choice with regard to their contract. The aim is to strengthen the position of the contractual partner and promote competition. (…)”

Rating

The Federal Ministry of Justice should consider whether the law that has now been passed will actually achieve the opposite of what is supposedly intended. This is because the ban on longer terms massively restricts the previous options for drafting contracts. Whereas the parties involved were previously still able to agree on contracts tailored to their respective needs, the planned restrictions will in fact significantly limit competition and freedom of choice. The losers of the proposed legislation are therefore almost everyone involved. The “winners” are at best those consumers who “forget” notice periods. The worthiness of protecting this group seems highly questionable when you consider that those affected who have “forgotten” to terminate their contract after a two-year contract period had previously benefited from very attractive contract conditions in most cases. In future, thanks to this group of “forgetters”, the aforementioned attractive contract conditions will no longer be available to anyone.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

The limitation period for freight claims – the exception is the rule for freight compensation claims!

January 22, 2020/in Commercial law, Liability law, Nicht kategorisiert, Transportation law

LEGAL+ NEWS

1, 2 or 3? On the limitation period for freight claims - the exception is the rule for freight compensation claims!

The freight business is mass business. The industry is therefore reliant on being able to “shelve” individual freight orders promptly. For this reason, international freight law, which aims to protect the freight industry, provides for a much shorter limitation period for transport law claims than the standard limitation period. It is not easy to answer the question of which limitation period for freight claims actually applies in a specific case. 1, 2 or 3?

Statute of limitations for air freight

In the case of air transportation, the question is still relatively easy to answer. In general, a so-called limitation period of 2 years applies here (see Art. 35 of the Convention). However, it should be noted that this period only applies to claims for damages against the carrier. In addition, this period also applies in the case of so-called qualified fault, for which land freight law (see below) provides a special regulation. The relevant general statute of limitations rules apply to all other claims in the area of air freight.

Statute of limitations for land transportation

Land freight law is more complicated:

In principle, a short period of only one year applies to all claims “arising from transportation”. This begins with the delivery of the freight or from the day on which it should have been delivered. This legal situation applies – in relation to land transportation – essentially equally in the national (439 HGB) and international area (Art. 32 CMR).

3-year limitation period for freight claims in the event of qualified fault – the rule for freight compensation claims

By way of derogation – again nationally and internationally – a 3-year period applies if the defendant is at fault.

With regard to the main claim (primary claim) of the carrier, it is worth taking a closer look at the legal situation:

In the case of freight claims (carrier’s claim for remuneration), it is already disputed whether the limitation rules under transport law are relevant at all. Based on the statute of limitations under transport law, Section 439 (1) sentence 2 HGB and Art. 32 (1) sentence 2 CMR are of particular relevance to the freight remuneration claim. According to these regulations, claims under transport law only become time-barred after three years if the opposing party is guilty of so-called qualified fault. In the case of refusal to pay freight, this is often the case.

In detail:

BGH ruling of 23.04.2010 (Ref. I ZR 31/08) – Section 439 HGB also covers the claim for performance (freight claim)

Since the statute of limitations rules are primarily aimed at limiting the period in which the shipper can assert claims for loss, damage or delay, it is legitimate to ask whether the short limitation period under transport law also applies to the claim for compensation for the transport service. An understanding according to which only claims for damages are covered, as in the case of air freight (Art. 35 MÜ), is obvious. This question, which was once “hotly” debated, should now be considered clarified by the BGH. In its ruling of 23.04.2010, the BGH stated (Ref. I ZR 31/08):

“(…) According to § Section 439 (1) sentence 1 HGB the limitation period for claims arising from a contract subject to §§ 407 to 452 HGB subject to transportation is generally one year. (…)

The plaintiff is demanding freight compensation for the individual orders not placed in February 2004, (…) Whether the three-year limitation period pursuant to § Section 439 (1) sentence 2 HGB is applicable to primary claims for performance and contractual claims for reimbursement of expenses arising from freight contracts is controversial. (…)

The Senate agrees with the view that the application of the § Section 439 (1) sentence 2 HGB to primary benefit claims is affirmed.

The exception is the rule for freight claims – in practice, freight claims often expire within the period of § 439 para. 2 HGB or Art. 32 para. 2 CMR

The main reason why the application of the § Section 439 (1) HGB on freight claims was controversial, the exception of the § Section 439 (1) sentence 2 HGB. Accordingly, in the case of qualified fault, a 3-year limitation period also applies in transport law. In practice, this often means that freight claims only become time-barred after three years, because in many cases the refusal to pay freight is likely to constitute such qualified fault. Although the BGH may take a different view on the grounds that civil law provides for legal errors as grounds for exoneration, the actual consequence of the current BGH case law is likely to be that in many cases the freight claim only becomes time-barred after 3 years.

Refusal to pay freight regularly constitutes willful non-performance – OLG Frankfurt, judgment of April 15, 2005, Ref. 24 U 11/05

The OLG Frankfurt, which for the same reasons rejected the application of the § Section 439 (1) sentence 2 HGB on claims for performance (see OLG Frankfurt, judgment of April 15, 2005, file no. 24 U 11/05):

“(…) In practical terms, every non-fulfillment of a contractual claim for remuneration and usually also every non-fulfillment of a contractual claim for reimbursement of expenses on the part of the forwarder, the sub-forwarder and the carrier is a willful non-fulfillment. The parties to the freight or forwarding contract always know exactly what they have to pay for the contractual performance of the other party, which services are and have become necessary for the fulfillment of the contractually assumed transport or procurement tasks. From a practical point of view, “non-payment in blameless ignorance” is hardly conceivable.”

This is to be agreed with. As a rule, non-payment of a freight invoice should constitute qualified fault on the part of the client.

Example: Prohibition of offsetting

This is particularly clear if the underlying contract prohibits offsetting against disputed claims. According to the ADSP agreed in many cases, this is the rule (cf. Art. 19 ADSP). In this case, the principal is in clear and intentional breach of the contract of carriage with the consequence that he is at fault.

Conclusion on the limitation period for freight claims and practical tip

If, after all, the client does not pay the freight, although it must be obvious to him that the refusal to pay is unlawful, the assumption of qualified fault is obvious.

In the case of freight claims that are still open after one year, you should therefore always check whether the reason that the client has put forward against your claim is really valid. If not, it is worth checking more closely whether your claim could still be time-barred for the reasons described above.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

Law on the limitation of contract terms – Good night, freedom of contract ?

September 6, 2019/in Commercial law, Contract Law

LEGAL+ NEWS

Law on the limitation of contract terms - Good night, freedom of contract ?

The Federal Ministry of Justice is getting serious with its plan to limit contract terms. In mid-August 2019, the press reported that the legislative project to “protect against cost traps” was well advanced. In terms of content, this involves, among other things, the welcome elimination of various abuses (e.g. in the area of telephone advertising). Another, less welcome subject of the project is the limitation of contract terms in certain sectors, e.g. in the areas of mobile telephony and energy supply. The corresponding draft bill is on the home straight.

A closer look at the proposed legislation raises considerable concerns from a legal perspective with regard to the planned limitation of terms. The planned law fundamentally restricts contractual freedom as an elementary component of constitutionally protected private autonomy. The necessary justification for this restriction of contractual freedom is not apparent.

The Federal Ministry of Justice’s plan to limit contract terms

According to its key issues paper “Protection against cost traps”, the Federal Ministry of Justice is planning the following changes:

“The prohibition of clauses relating to contract terms and extensions in Section 309 no. 9 of the German Civil Code (BGB) is to be amended to the effect that in future no longer than one year can be agreed by means of general terms and conditions. An automatic extension of the contract should only be possible by three months in each case if the contract is not terminated at least one month before the end of the agreed contract term.”

Justification of the project in accordance with the key issues paper “Protection against cost traps”

The Federal Ministry of Justice justifies the planned project in its key issues paper “Protection against cost traps” as follows:

“The structural imbalance between business and consumers often means that (…) consumers have to agree to contractual provisions that are not in line with their interests or are no longer up to date. The annoyance is often great.”
“In contracts for the supply of goods, services or work, consumers generally have little interest in long contractual commitments.”

“The The two-year contract terms currently possible and the automatic renewal of the contract for a further year are no longer in the interests of consumers. Renewal clauses in general terms and conditions are a particular annoyance in terms of consumer policy. They are simply overlooked by many consumers or are forgotten, so that contracts that are no longer wanted are often extended for further years against the consumer’s will because they failed to terminate them in good time.”

Legal assessment of the project

In my opinion, the planned limitation of contract terms is not compatible with the principle of freedom of contract. The arguments used by the Federal Ministry of Justice cannot justify the planned restriction:

The principle of freedom of contract

Freedom of contract is understood to mean the right of every individual to decide freely about

to conclude a contract (so-called freedom to conclude a contract), and
The parties are free to decide on the content of a contract (so-called freedom of design).

Freedom of contract is not expressly regulated by law; it is part of the constitutionally protected principle of private autonomy, according to which every individual is granted the right to freely organize their private living conditions.

Part of this is the freedom to conclude contracts and to determine their content. The latter is what is at issue here.

Permissible restrictions on freedom of contract

Both forms of freedom of contract – i.e. freedom to conclude contracts and freedom to form contracts – are subject to recognized restrictions.

In certain situations, there is an obligation to contract. One example is motor vehicle liability insurance. Here, insurance companies are obliged to contract in accordance with Section 5 of the German Compulsory Insurance Act (with the restrictions set out therein). The necessity here is obvious.

Freedom of design is also subject to certain restrictions in order to protect higher interests. For example, there are legal regulations in various areas of law that are of a mandatory nature and cannot be waived by contract; such regulations can be found, for example, in the law on general terms and conditions, which declares certain provisions in general terms and conditions null and void primarily for the protection of consumers. Further restrictions result from statutory formal requirements (written form, notarial form, etc.) as well as the statutory nullity order with regard to provisions that violate common decency(Section 138 BGB) or statutory prohibitions (Section 134 BGB).

No apparent justification for the planned restriction of design freedom

As stated at the beginning, I do not believe that the planned limitation of contract terms can be justified to any extent:

Act affects all future contracts in the sectors concerned

First of all, it should be noted that the law on general terms and conditions does not only apply to the proverbial “small print”. In practice – especially in the sectors affected here – every contract is subject to GTC law, as it would simply not be feasible to agree individual contract terms with every consumer. In short, the proposed legislation effectively covers every future contract in the affected sectors.

Complete elimination of the option of 2-year contracts

As a result, the option to conclude a two-year contract, which is extended by one year in the absence of termination, will no longer be available in future.

How can we justify taking this option away from the parties? In my opinion, nothing:

Freedom of contract means that the parties themselves can (and must) determine what is subjectively right for them within the limits of good morals and the recognized general laws limiting freedom of contract. No one can or may take this decision away from them.

The legislator, insofar as it wishes to uphold private autonomy, must respect this self-determination of the legal subjects and must not allow itself to be tempted – e.g. driven by political sentiment – to determine what is right through laws that (impermissibly) restrict contractual freedom.

“Consumer protection” as a mere pretext for limiting contract terms

In principle, consumer protection is an unquestionable motive for restricting freedom of contract. However, consumer protection must not be abused – as in my opinion in this case – to justify politically driven projects.

According to its own statements, the Federal Ministry of Justice is of the opinion that terms of two years are “unfair” and a “nuisance” for consumers. It overlooks the fact that consumers in all the sectors targeted (mobile telephony, energy supply, etc.) have a wide variety of contract models from a large number of providers to choose from. In particular, consumers always have the option of entering into contracts without any commitment. Conversely, they can – at least so far – choose to enter into commitments and often receive considerable benefits in return (e.g. significantly more favorable conditions, discounted hardware, etc.). In other words, consumers today can choose between a variety of contract models and decide for themselves what is “right” for them. This also includes the assessment of the disadvantages associated with a contract commitment, which is the sole responsibility of the consumer. It can therefore be of no relevance from a legislative perspective that consumers may be “annoyed” after some time by an existing contract commitment that they consciously entered into some time ago.

Competition law already offers sufficient protection

After all, the consumer only needs protection to the extent that he is not misled by a contract offer, e.g. in that essential contractual conditions are not sufficiently recognizable for him. However, this is the responsibility of competition law, which has always fulfilled this task adequately.

Conclusion

With regard to the limitation of contract terms, the planned “cost trap law” represents an unjustifiable (further) curtailment of contractual freedom and a further step in the direction of a politically desired or at least condoned departure from the principle of private autonomy.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

Imprint

Data protection

The limitation period under transport law according to § 439 HGB

August 19, 2019/in Commercial law, Contract Law, Transportation law

LEGAL+ NEWS

The limitation period under transport law according to § 439 HGB

The limitation period under transport law pursuant to § 439 HGB is one year from delivery of the transported goods and is therefore significantly shorter than the 3-year standard limitation period pursuant to § 195 BGB.

Due to this significant shortening of the limitation period, the question of the scope of application of the transport law limitation period is of great importance. I can report from experience that the question of whether a claim is subject to the statute of limitations under transport law or the standard statute of limitations often raises difficulties. In this respect, there are two “camps”, one of which takes a narrow interpretation and one – rightly – a broad interpretation.

The following article summarizes the legal situation.

Wording of the law: Claims “arising from transportation”

Pursuant to § 439 para. 1 sentence 1 HGB, claims “arising from transportation” in accordance with the provisions of §§ 407-450 HGB expire within one year of delivery of the goods.

The limitation period under transport law in accordance with 439 HGB covers all claims in connection with transportation

Even though the wording of § 439 HGB regulates the limitation period for claims “arising from transportation”, the preferred view is that it covers all claims that are intrinsically linked to the transportation.

The purpose of the uniform limitation provision is to simplify the limitation provisions and make them clearer. Possible legal uncertainties due to different statutes of limitation for claims arising from a uniform factual situation are to be counteracted (see BT-Drucksache 13/8445 on Section 439 HGB).

This also includes, for example, claims arising from consulting services in connection with the organization of the transport, claims arising from customs clearance and claims for information (see OLG Nuremberg of 26.11.1974, NJW 1974, 501).

In particular, the statute of limitations also applies irrespective of the party asserting the claim and the legal grounds on which it is based. It is therefore irrelevant whether the carrier takes action against the principal or vice versa. (see BT-Drucksache 13/8445 on § 439 HGB).

The limitation period under transport law pursuant to 439 HGB is not merely a limitation or exemption from liability within the meaning of §§ 434, 436 HGB

The opposing view, according to which § 439 HGB should be a limitation or exemption from liability within the meaning of §§ 434, 436 HGB, is incorrect. In particular, this would mean that Section 439 HGB would only apply to claims of the parties to the transportation contract in question. This view cannot be substantiated. The application of § 439 HGB is not only possible via § 434 para. 1 HGB or § 436 HGB:

Justification of the law

As explained above, the purpose of the uniform limitation provision of Section 439 HGB is to simplify the limitation provisions and make them clearer (explanatory memorandum to the government draft of the Transport Law Reform Act, BT-Drs. 13/8445, p. 77). The limitation rule of § 439 HGB is based solely on whether the transportation as such is subject to the provisions of §§ 407 et seq. HGB. This is the only way to ensure that all claims directly related to the transportation run concurrently (see BT-Drs. 13/8445, p. 77).

The reference to § 439 HGB in the explanatory memorandum to § 434 HGB and thus the clarification of the systematic relationships in the transport law regulations of the HGB is unambiguous, so that no serious doubt can arise as to the scope of § 439 HGB. The decisive sentence is quoted as follows:

No separate reference is made to the scope of the limitation provision, since the limitation provision itself (Section 439 HGB-E), in accordance with the parallel provision of Article 32 CMR, already covers all claims arising from carriage, including non-contractual claims.”.

BGH case law

Nothing to the contrary is stated in the absolutely clear case law of the BGH, which stated (judgment of January 10, 2008, ref. I ZR 13/05, para. 13):

“The provision of Section 439 (I) HGB links the application of the independent limitation period under freight law solely to the fact that the asserted claim arises from transportation subject to the provisions of this subsection. If such transportation is to be assumed because an effective contract of carriage within the meaning of § 407 HGB, all claims that are directly related to this transportation are subject to the statute of limitations of § 439 HGB, irrespective of the party asserting them and the legal grounds on which they are based (cf. (cf. explanatory memorandum to the draft bill of the Transport Law Reform Act, BT-Dr 13/8445, p. 77; BGH, NJOZ 2006, 1068).”.

Conclusion: Section 439 HGB covers the entire “facts” in connection with transportation

The limitation period under transport law is not (solely) linked to a transport contract and the claims resulting from it.

Rather, the short limitation period of Section 439 HGB covers any claim in connection with transportation. In particular, the short limitation period therefore also applies outside the contract of carriage concerned, insofar as the claim in question has an “internal”, e.g. economic, connection with the carriage.

Do you have any questions?

LATEST ARTICLES

Nicht kategorisiert

The court’s duty to provide information in civil proceedings

It is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO. This procedure is unlawful!

Read more "

September 18, 2023

Nicht kategorisiert

Reference to USB stick in the application

Our latest article analyzes the BGH ruling of 14.07.2022, which for the first time allows reference to a USB stick in the claim. Find out how this ruling expands the scope of digitalization in civil proceedings and what consequences it has for practice.

Read more "

September 13, 2023

Nicht kategorisiert

Action dismissed as “currently unfounded”

Disputes under construction law in particular often concern the due date of remuneration claims, e.g. because acceptance as a prerequisite for payment is questionable. In these cases, it is not uncommon for judgments to be handed down in which a claim is dismissed “as currently unfounded”.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

Read more "

September 7, 2023

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

I look forward to our networking.

About Daniel Meier-Greve

Entries by Daniel Meier-Greve

LEGAL+ NEWS

Legal basis of the road haulage license

Branch office

Reliability

Professional suitability

Important:

Traffic rider

Important:

LATEST ARTICLES

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

LEGAL+ NEWS

Problem description

Necessity of contractual provisions

Interim result on EURO clauses

Forms of permissible contractual clauses

Price adjustment clauses

Renegotiation clauses

Conclusion on (post) EURO clauses

LATEST ARTICLES

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

LEGAL+ NEWS

The problem: The “sandwich position” of the general contractor

What does keeping free mean?

Consequences of violating the duty to maintain freedom

Conclusion on the meaning and purpose of retention obligations

LATEST ARTICLES

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

LEGAL+ NEWS

Starting point: Necessity of a recognition procedure

Grounds for non-recognition to be examined by the German court

Lack of jurisdiction of the foreign court

No proper service (violation of the so-called right to be heard)

Incompatibility with another court decision

Incompatibility with the so-called ordre-public

Lack of guarantee of so-called reciprocity

Consequences of not defending against the foreign action: Limitation of defense options in the enforceability declaration procedure

Foreign judgments – conclusion and recommendation

LATEST ARTICLES

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

LEGAL+ NEWS

About BlockAxs GmbH:

LATEST ARTICLES

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

Neuer Wall 61 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

LEGAL+ NEWS

Consequences of the coronavirus for current contracts – case groups

Corona and contract law: Relevant basic legal principles

“pacta sunt servanda” – principle of contractual fidelity

“do ut des” principle for mutual contracts – Section 326 BGB

Supplementary interpretation of the contract and disruption of the basis of the transaction

Corona and contract law – Possible solutions for the above-mentioned case groups

Corona and contract law – Case 1: A contract cannot be definitively fulfilled by one party

Corona and contract law – Case 2: A contract cannot be fulfilled temporarily

Primary solution approach: Supplementary contract interpretation