Contract

of these articles treats the contract under private law. Besides there is also the public and the international-law contract.

A contract is an agreement of will, expressed by two or several persons, over causing a legal success.

Table of contents

spirit-historical meaning

thatalone „a itself standing “, thus a bare mutual consent, is able, to cause rights and obligations is everything but naturally. One speaks to that extent of the Konsensualvertrag contrary to the material contract.

The latter does not come by mutual consent, but only by a certain action.Up to the law of contract reform for example still isolated also for the German right the opinion was held, the loan agreement, § 607 a.F. BGB, comes only by the devotion of the money to conditions.

Such actions decrease/go back pretty often on times, in thosethe right only slowly from the religion developed. Their binding effect the contracts drew at that time out with the contract conclusion to connected oaths, magic Gelübden, rituals, words etc. By this the various requirements in form (for instance the marriage ceremony before the registrar of births, marriages and deaths) do not fall, thoseonly, not however the contract conclusion concern the effectiveness of the contract.

The step from such a except-legal connection to one only in the right, i.e. in the private autonomy of the parties being rooted connection (pacta sunt servanda - contracts are to keep), can as spirit-historical achievement hardly enough to be emphasized.

Nevertheless life-practically innumerable examples, with those the legal conditions, do not exist the goods consideration, a coming off or the fulfilment of contracts if also in the right-free area, so nevertheless without each legal consideration up To confidence basis or in the spirit of intercultural relations on the basis of non-European juridical systems without the possibility of the status persons independent complaint handend and/or. Penetration of the requirements to be closed. Sociological exchange procedures are based also today still generally on mutual emotional offersand more or less form-free negotiations. Rituals represent here just as relevant basis as verbal or nonverbale stating. Emotional Bedürfnissse or social connections is subject to that extent up to often floating the ineffectively valid social contract likewise like unconscious guidelines and/or.psychological determinants such as contracts over material rights or goods and services.

contract negotiation

as contract negotiation becomes the phase up to the agreement of two (bilateral negotiation) or several parties (polylaterale negotiation) and thereby the connectedmutual declaration of intention, D. h. the phase up to the conclusion of a contract, understood. This phase can both in the public, economic and/or. economical or within the private sector both to be formally and form-free developed. In each case here partially something similar becomeElements and internal successions instrumentalisiert differently clearly.

ranges

from a contract negotiation one speaks in particular in connection with material rights, the achievement exchange of goods and services or the Lizenzierung of immaterial rights (patents , marks). Soplace treaty negotiations for example the goal-prominent process of the letting and/or. leasing of economic goods and achievements of the distribution politics in the marketing of an enterprise. With respect to the sales formally between economic, private and public exchange processes one differentiates. In contrast to this contracts in one become judicial argument regularly in principle or in their fulfilment and/or. legal coming off as such denied.

The demarcations in the private or social context of treaty negotiations for example with the Verdinglichung the female Sexualität and the social treaty negotiations in the family framework as well as suchin the public area (for example in the context of household negotiations of the bodies of the public right) and to clarifying contractual relations of legal entities nevertheless common regulation characteristics formally permit to recognize:

  • Offer and acceptance justify a contract
  • of negotiation goods can material, immaterial, in addition,social values its
  • treaty negotiations are often covered, i.e. led by social behavior masked
  • well-planned conduct of the negotiations partially unconsciously caused (for example in the education)
  • social one standards and formal requirements for example before court, differently operationalisiert

also becomes the consciousNegotiates as such within the range of personal relations with the purpose of the education, marriage on sample or prostitution of the interacting parties often formally answered in the negative (see. in addition also exchange (sociology)), although also these negotiations concern emotions for example operationalisierte as contractual item.

In relation to the unconscious negotiation of needs within the private and interhuman sector the contract negotiation differs in the economic or public framework frequently only by the default of a writing and, certainly partially in the offer nature legal of prescribed successions in negotiation continuation.

Normally becomethe individual phases of social negotiations formally indicated or does not state. Usual here rather the flowing transition from one is to the next phase, while the opening and the conclusion of a negotiation are accompanied pretty often with (nonverbalen) a signal action. Hereit is to be fixed both legal and handling-legally not necessarily a found compromise always in writing.

expiration of the informal and/or. social negotiation

the parties express first opposite demands and approach then mutually on, around a contractto close. This takes place in a process from concessions or the search for new alternatives. Fundamental negotiation interventions and phases of the conduct of the negotiations in free economic and/or. private treaty negotiations are:

  1. Interest stating
  2. goods consideration
  3. weighting
  4. compromise identification
  5. conclusion of a contract

thereby is it first of subordinated importance,who the negotiation formally open and that this expiration only most probable and not only conceivable one is. In the course of a negotiation both nonverbale and strategic elements can accompany, every now and then also negotiation aid (so-called second) the argument, so that thoseindividual phases diverge or overlap themselves and/or. repeat irregularly.

Different interaction theories (see. Grey man 1972 S. 1126 FF.), in particular the theory about the elementary forms of social behavior of Caspar Homans (1961/1972) are suitable for these purposes. Homans triesto interpret communication, which on learn-theoretical regularities by motivation and reward and/or. Punishment is based (vineyard 1986 S. 78; Homans 1972, S. 19 f.). The sales procedure becomes therefore for the social, dynamic exchange change, its result of mutual communication betweenSalesman and buyer depend (clammy 1989, S. 187). Rolf Schoch (1969 S. 95) even the opinion represents that social interactions straight is to a necessary condition for being present sales sale. Investigations in addition show that success of theSales procedure not only of characteristics of the salesmen and buyers depends, but also on the mutual perception of the interacting persons (see for this psychology of selling). The interaction of a contract negotiation in particular only so long to be kept upright, like sufficiently large rewards be expected (Schoch, 1969, S. 135).

To the sales negotiation closer in the major item sales talk.

legal bases

coming off

contracts term-necessarily require the unite-uniting its from at least two persons. Legal transactions, in which only one person, about those is involvedNotice or the will, is not contracts. Contracts are called accordingly two or multilateral legal transactions. A contract in the sense of right is then its (see. Agreement) of two or more Contracting Parties over it that between them determined legal consequences occur, in particularObligations develop or to changes of title go are.

A contract comes in detail by two, agreeing contentwise declarations of intention delivered one on the other with purchase, whereby those usually calls first temporally request or offer and on it the following as acceptancebecomes. The offer must so in detail and/or. with the help of supplementing legal regulations lay outable its that to the acceptance a simple is sufficient “”. Both offer and acceptance are in principle receipt-needy declarations of intention, must happen thus to that in each case different part, over effectiveto become.

After German right everyone is to be decided in principle completely freely whether and with whom he wants to die a contract and to do on which conditions he this (freedom of contract). In exceptional cases this liberty can by obligation orProhibition limited its.

For the lecture of the own interests and for the appreciation of the interests of the official contact (- opponent) in the different cultures and internal connections most different negotiation rituals developed. Thus the court hearing is subject to very strict rules of the judicial code, thoseNegotiation with the own new generation around borders and resources is however fraktal and partially unconsciously organized. Straight one within the interhuman range, in addition, in a multiplicity of eastern commercial cultures and in Southeast Asia applies the spoken word and/or. the principle of the konkludenten (conclusive) acting (see also § 133 BGB). For the contract conclusion it is sufficient that the parties inform themselves over the substantial regulations of the contract (essentialia negotii), if those are competent contract closing parties both.

As far as they do not make regulations,any gaps are closed by the appropriate statutory right. In the borders of the compelling statutory right it remains unbenommen the parties however, even over further than the substantial regulations of the contract agreements to meet (abdingbares right). Become such agreements ofone of the Contracting Parties preformulates and the others with contract conclusion posed, then it concerns general trading conditions, at whose effectiveness special legal demands are made.

requirements in form

of contracts can be closed in principle form-free, i.e. without a special Form consider to have. Contracts cannot therefore only be closed by the fact that the parties bring and sign the conditions as per contract to paper. Also the agreement in the discussion, by telephone or E-Mail is an effective contract. The contract and/or. itjustifying explanations must be formulated not even express;conclusive behavior, which may understand that different than declaration of intention in each case, is sufficient: Who enters into a streetcar, a contract offer likewise expressed by conclusive behavior takes to that with the own conclusive behaviorStreetcar company on.

Exeptionally (in particular if the law determines this) are effective contracts only if they were closed in a special form. Like that for instance the purchase of a property or the transmission of the business share at a GmbH is only effective,if they were notarially recorded .

effects

of contracts can

  1. justify obligations, provide in other words a Contracting Party a requirement against another Contracting Party. Thus for example the lease grants a requirement to the tenant against the landlordon hiring and use of the rented dwelling and the landlord a requirement against the tenant on payment of the rent. Contracts, which justify obligations in this way, are called also acts which creates an obligation. If the obligated one does not follow its obligation, their can Fulfilment to be if necessary judicially forced.
  2. cause changes of title directly. If the Contracting Parties agree on the transfer of a requirement and if the requirement is transferable and the retiring Contracting Party of the requirement owners, then the requirement goes immediately and easily on the other oneA Contracting Party over. During the change of a property situation e.g. in fulfilment of a sales contract the handing over party is for the conveyance justified is and those apart from the agreement of the parties over the passage of title usually also still necessarily that hand the purchase thing over,Agreement over the passage of title at the time of the delivery of the purchase thing still continues. Contracts, which cause changes of title directly, are called also orders or order business. Since order business causes the intended change of title directly, they do not have to be interspersed obligatorily.

Obligation and order businessmeet frequently in the same life circumstances. Who signs a sales contract for example with a used-car dealer over a vehicle, fetches afterwards cash and it to the salesman out hands, who publishes in response the vehicle, usually altogether three contracts closed: A act which creates an obligation, into that the dealer for the hiring of the vehicle and the buyer for the payment of the purchase price commits itself, and two order business - one, in order to change the legal allocation of the money in favor of the dealer, and one, around the allocation of the vehicle in favor ofto change the buyer. All three business is in their legal fate in the principle - subject to a set from here not exceptions which can be treated - from each other independent (abstraction principle).

The effects of a act which creates an obligation step in principle only inter of partes,i.e. between those persons, who closed the contract. Only under close conditions contracts can be closed, a third, which is not involved in the contract conclusion, right against the Contracting Parties provide (contract in favor of third, contract with protective effectfor third); Contracts, which are directed to justify obligations third are not possible.

connection to the contract

Pacta “contracts it are sunt servanda or too German to keep” designates the principle of the treaty right that the Contracting Parties onthe contracts, which closed it, in principle bound are. Only completely exeptionally, i.e. then, if the parties agree upon this in such a way, or if the law determines it, the absolute connection of the parties to their contract is broken through and it one orboth parties permits to separate from the contract to. The most important cases, in which the law permits to separate from a contract to are the following:

  1. Of remote paragraph contracts itself the consumer can by revocation or return within in principle twoWeeks starting from entrance of the commodity and/or. Instruction over its revocation and/or. Return right solve.
  2. From insurance contracts the insurant can separate within two weeks after conclusion by revocation; at the time of conclusion if conditions of insurance were not handed out to him, a right stands for him to Contradiction within two weeks after entrance of the insurance policy including conditions too.
  3. Also of entry door business the consumer can separate within two weeks by revocation or return.
  4. Something similar applies to consumer loan agreements, partial payment business or rate supply contracts.
  5. In case of of achievement disturbances or- in particular with the sales contract - of it to the concerning a Rücktrittsrecht can be entitled to lack.
  6. A party is subject with the contract conclusion finally to a mistake, about because it was not over contents of its explanation in the clear, an explanation of this contentsnot to deliver or over a substantial characteristic of a person or a thing in the unclear one was, or it wanted to the contract conclusion by threat or deception was arranged, can it for contestation be justified.
  7. In addition with continuous obligations a notice in consideration can come.

contract modification

place of a complete solution of the contract is possible also a contract modification . However the conditions are just as close for this as for a contract solution.

typology of the contracts

around right traffic in certain, frequentlyto facilitate, the German civil law book (BGB) makes recurring and comparable life situations available a set of standard agreement types and meets a number of special regulations, which concern only the respective type of standard agreement.

Around of a type of standard agreement and the associated special legal regulationsUse to make, is sufficient that the Contracting Parties make an agreement, which the type-forming characteristics straight of the desired type of standard agreement fill out. For example a party is other against after days or months a computed payment for a limited period a car toUse leave, then the type of standard “lease” is concerned. If an agreement is in this way assigned to a type of standard agreement, then the regulations of the BGB for an appropriate reconciliation of interests between the parties, so far the parties own, reproached to this contract type, do not ensure in particulardeviating, agreements met.

To the contractual standard agreement types of the BGB belong in particular

the sales contract

  • , the donation contract
  • , as customs hiring contracts

the lease

  • and the lease, the borrowing contract
  • the loan agreement
  • , the partial time right of residence contract
  • , as offer for tender contracts

the contract of employment

as safeguard contracts

as well as the articles of association and others.

Always a contract (clear) cannot be assigned to a type of standard agreement. That applies in particular to modern contract forms such as leasing, Franchise, hire purchase or hall and leasing baking business. Here it must be examined in individual cases in each case whether and to which extent the regulations for oneor also several of the standard agreement types to the concrete business to be applied can.

There are contracts not only in the law of contract, but also

beside the contract under private law gives it also the public contract.

see also


the reference to right topics consider toggle contract sale Laesio!
 

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