What does it mean to put Goa
Real management without an order (§§ 677–686 BGB)
1. Requirements of the real GoA
How to check: Requirements of the real GoA (S_178 / Buch_2 / Abschn_8 / Titel_13 / §_677§ 677 Hs. 1)
"For someone else" (will to manage the business outside of the company)
Objectively foreign business
Presumption of existing foreign management will
Assumption in "foreign" business too
Rn. 36 ff.
Refutation based on the circumstances?
Proof at obj. neutral transactions based on other circumstances
No authorization / obligation of the manager
No other exclusions / superseding special rules
The requirements of the real GoA result from § 677 Hs. 1:
a) Business agency
The concept of agency within the meaning of Section 677 corresponds to the broad understanding of Section 662. Therefore, agency within the meaning of Section 677 is any actual or legal acts to understand insofar as it goes beyond mere toleration or omission.PalandtSpeak Section 677 marginal number 2 in conjunction with Section 662 marginal number 6.
The "Managing Director" i.S.d. §§ 677 ff. is the person who takes care of the business himself or at his instigation by doing it for him Management assistants can worry.MüKo-Seiler Section 677 marginal number 3.
aa) Strangeness and foreign business management will
Video: Real management without a mandate (§§ 677–686 BGB)
Please also note the case training on the StVG, here you will find another case on the GoA in conjunction with the StVG.
If you read Section 677 carefully and compare the wording with Section 687 (2), you will find that Section 677, according to its wording, does not require any objective strangeness of the business concerned for the manager. Rather, it says there that “one business” “is done for another”. This addresses a subjective objective, the will to manage the business outside of the company.E.g. the BGH in NJW 2000, 72 under No. II 2a; PalandtSpeak Section 677 marginal number 3; Medicus / Petersen Civil law marginal number 407; Thole NJW 2010, 1243 under items II and III 1. According to the wording of the law, an objective foreignness is not a constituent feature of the real GoA. It is different with the bogus GoA (cf. § 687), in which the objective foreignness is a constituent feature and there is no will to conduct business outside the company. The bogus GoA is not typified by the subjectively third-party acting of the managing director, but by unauthorized interference in a legal system objectively assigned to the principal.
From the wording of these facts it is often inferred that the strangeness of the business is not to be examined as an independent element of the facts in the real GoA, but is only given its meaning in the justification of the will to manage the external business.See, for example, the explanations and test sequence at BGH loc. cit. or in the judgment of May 27, 2009 (Az: VIII ZR 302/07) under No. 18 (distinction between objective and subjective business (only) “in this context”); so also Palandt-Speak Section 677 marginal number 3; see further Gursky Law of Obligations BT p. 159; Schmidt JuS 2004, 862, 864 ff. Because - there is broad agreement on this - at least exclusively for one objectively strange business the necessary will to conduct business outside the company can be presumed. Such a presumption does not apply to objectively neutral or even objectively exclusively own transactions; the will to manage the business outside of the company must be demonstrated here on the basis of the other external circumstances. If such evidence is provided, one speaks of a so-called. "Subjectively foreign" businessE.g.. BGH in the judgment of May 27, 2009 (Az: VIII ZR 302/07) under No. 18 = BGHZ 181, 188 ff. = NJW 2009, 2590 ff.
In addition, however, it is also argued that the phrase “for someone else” and the mention of a “business owner” in Section 677 presupposes, due to the systematic context, e.g. from the synopsis of Section 686, that the business is foreign as a factual feature to be examined independently, in addition to the will to conduct business outside of the company .See. Looschelders Law of Obligations BT Rn. 842 ff .; Buck-Heeb Special law of obligations / 2 Rn. 29 ff. With this approach too, however, there is agreement that the strangeness not only exist objectively, but also emerges as so-called "subjective strangeness" in the case of neutral or even personal transactions, solely from the subjective direction of the manager's will can result. Looschelders loc. cit .; Buck-Heeb Special law of obligations / 2 loc.
There are consequently two audit approaches that differ slightly in structure: Either you leave out the "strangeness" as an independent point in front of the will to manage the business outside the company and examine the strangeness of the business only within the framework of the will to run the business outside of the company (more on this below). Or you can deal with the strangeness before the will to manage the business outside of the company as part of an independent examination station. You then have to refer to the topic of “strangeness” again, namely in the following point “Willing to conduct business outside of the company” (see below under No. 36 ff.).
Both variants of the exam are justifiable. I propose the first approach here, because the examination of “foreignness” and “foreign business management will” in two separate sections remains incomprehensible, especially in the case of “subjectively foreign business”. In order not to cause unnecessary irritation with the proofreader of your exam - after all, you don't know which viewpoint he prefers - I suggest the following formulations: You choose as the heading for the second examination item after "business procurement" either simply according to the wording of § 677 "for someone else." "Or" strangeness and foreign business management will ". The starting sentence for the examination section could then be:
"Furthermore, the real GoA presupposes that the managing director has taken care of the business" for someone else ", that is, with the will to manage the business outside of the company, which can be assumed in principle with an objectively foreign business.
In this way, you immediately bring up both aspects (strangeness and the will to manage the business outside of the company) and indicate that you will investigate both topics immediately.
bb) Systematic classification of the will to manage the business outside of the company
The element "for someone else" distinguishes the real from the fake GoA. It is subjectively as so-called "external business management will" to be understood (see above under No. 26).
Definition: will to manage the business outside the company
A Foreign management will occurs when the managing director does the business not as his own but as someone else's business, i.e. acts with the awareness and will to act in the interest of (somebody else).St. Rspr. Des BGH since BGHZ 16, 12 f .; PalandtSpeak Section 677 marginal number 3; Buck-Heeb Special law of obligations / 2 marginal number 32.
Every business agency is regularly stimulated and accompanied by a variety of motives. These can be self-interested or other-useful, mostly both self-interested and other-useful motives are present.
A puts out a fire in the house of his neighbor N who is absent from vacation. A is friends with N. With his extinguishing action, A wants to protect his friend N from major damage. He also wants to prevent another outbreak of fire that could otherwise reach his own house and set it on fire.
A has B's car towed away, which B has parked on A's property entrance without authorization. With the towing process, he is pursuing a business of B, which B was obliged to carry out as a disruptor of action and condition according to §§ 862, 1004. B is thereby released from the obligation to remove his car due to the achievement of the purpose according to § 275 Abs. 1. On the other hand, A also acts selfishly because he would like to remove the disturbance or deprivation of his property at the property entrance and use it himself undisturbed.
In order for the element to be “for someone else” to be fulfilled, the managing director must at least also act with the will of an outside manager. An additional self-interest does not exclude the application of §§ 677 ff.St. Rspr. Des BGH, e.g. judgment of May 27, 2009 (Az: VIII ZR 302/07) under Item 18 = BGHZ 188 ff. = NJW 2009, 2590 ff .; PalandtSpeak Section 677 marginal number 6; MüKo-Seiler Section 677 marginal number 9; Lorenz NJW 2009, 1025, 1027 under No. IV 1. Otherwise there were hardly any applications left for the real GoA - because someone who wants to do something for someone else without being asked also regularly pursues selfish motives, be it just striving for social recognition or Gratitude.Thole NJW 2010, 1243, 1247 under No. V 1. Something other applies, however, if priority self-interest pursued and the benefit of others is presented as an insignificant accompanying motive, such as the emphasis on the BGH loc. cit., which requires a "sufficient" will to manage the business outside of the company.
The foreign management will is one natural element of will. He is no declaration of intent.PalandtSpeak Einf. V. Section 677 marginal number 2. The provisions on declarations of intent are neither directly nor analogously applicable. At lack of or limited legal capacity of the managing director applies the special rule of § 682, which the Liability of the manager according to GoA rules. However, the managing director with limited legal capacity can for his part be entitled to compensation claims from §§ 683, 684.
The restriction considered by parts of the literature that § 682 will be superseded with the consent of the legal representative for the management of a person with limited legal capacity does not find support in the law. In addition, there is no legal transaction, so that §§ 106 ff. Do not fit.PalandtSpeak Section 682 marginal number 1.
The managing director does not need to have precise ideas about the person of the "other" (= "principal").Looschelders Law of Obligations BT Rn. 847. Errors of the managing director about the person for whom he (at least also) wants to run the business are even irrelevant according to § 686.
If the managing director acts without sufficient will to manage the business outside of the company, a real GoA is ruled out. Only a fake GoA within the meaning of § 687 comes into consideration.
cc) Determination of the will to manage the external business
Naturally, only the managing director himself knows whether someone has actually carried out an agency “for someone else”. A fact that is highly unsatisfactory in practice, since statements made by the managing director about his direction of will cannot be refuted. It is recognized that when examining the will to conduct a business outside of the company is always on to put an end to outwardly exposed circumstances.St. Rspr. Des BGH, e.g. BGHZ 40, 28 ff .; PalandtSpeak Section 677 marginal number 5; Buck-Heeb Special law of obligations / 2 marginal number 32. According to § 116 sentence 1, directions of will that have remained secretly hidden are irrelevant. The BGH formulated this idea in the famous "flying sparks" caseBGH in BGHZ 40, 28 ff. as follows:
“Determining whether there is the will to run someone else's business in cases of this type can run into difficulties. If it has not appeared in some form to the outside world, then, as is regularly the case in legal life, it is irrelevant. So there must always be clues that make the management's will externally recognizable. "
At this point (for the first time or again - see above under Rn. 27 et seq.) The Strangeness of business in the game. For the determination of an external management will based on external circumstances primarily on the outwardly recognizable Content of the business procurement to turn off. Furthermore, the content of the transaction can lead to a presumption of sufficient will to manage the business outside of the company, so that further evidence is no longer required.BGH NJW 2000, 72 f. Under No. II 2a. In detail:
(1) Objectively foreign business
In the case of exclusively objectively foreign business, i.e. business errands that already have their content after immediately and alone intervene in a foreign legal system, there is an actual, albeit rebuttable, presumption of sufficient foreign business management will of the managing director.St. Rspr. Des BGH, e.g. judgment of May 27, 2009 (Az: VIII ZR 302/07) under Item 18 = BGHZ 188 ff. = NJW 2009, 2590 ff .; PalandtSpeak Section 677 marginal number 4; crit. Lorenz NJW 2010, 2576 under No. II ("Assumption nowhere legally laid down").
Objectively alien are the sale of third-party property (cf. § 903), repayment of third-party debts,BGH in BGHZ 47, 370 f. upbringing and supervision of foreign, minor children (cf. § 1631,) cf. Medicus / Petersen Civil law marginal number 408. Avoidance of dangers from a foreign object (business of the interferer, cf. §§ 862, 1004). St. Rspr., E.g. judgment of BGH loc. cit .; PalandtSpeak Section 677 marginal number 4.
You can use the following rule of thumb to determine an objectively third-party business:
According to the rules to be observed by the managing director, may the specific business agency only be carried out by the principal or only with his consent?
The presumption of the will of the external management can be refuted on the basis of other circumstances. If the presumption is refuted, only a fake GoA can be considered (cf. § 687).
The fence sells a stolen item to a bona fide buyer. With the sale of the stolen item, the stealer conducts an objectively foreign business (namely that of the owner, § 935 Paragraph 1!), But not for someone else, but for himself. This case falls under the bogus GoA according to § 687 Paragraph 2 sentence 1.
(2) Objectively neutral business
In the case of transactions that have an objectively neutral character, the will of the external management cannot be presumed based on the objective content. The will to conduct such a business for someone else must therefore be recognizable here on the basis of other external circumstancesSt. Rspr. Des BGH, e.g. judgment of May 27, 2009 (Az: VIII ZR 302/07) under Item 18 = BGHZ 188 ff. = NJW 2009, 2590 ff .; PalandtSpeak Section 677 marginal number 5; MüKo-Seiler Section 677 marginal number 6 (e.g. verbal statements by the managing director in his private environment, information in his e-mails, blogs, etc.).
Neutral are transactions that cannot be assigned to a specific person from the outset, but can be carried out by anyone in their own interests or those of others.
If the managing director carries out a neutral business with the will of external management, one also speaks of a so-called "Subjectively foreign business agency".BGH loc. cit .; PalandtSpeak Section 677 marginal number 5.
The acquisition of a thing is a neutral business, since the owner is only assigned the sale according to § 903. The acquisition, however, is open to everyone. If A acquires something for the S (hidden or even as a representative in his name) without an order or other obligation, he is conducting a subjectively foreign business.
(3) Objectively own stores
In the case of objectively solely own business, the justification of a will to manage an external business is only theoretically conceivable.Cf. for example Palandt-Speak Section 677 marginal number 3.
Whoever sells his own thing is hardly acting for someone else without further agreements.
It is controversial whether the service on an actually non-existent liability (e.g. in the case of an undetected void contract) also falls under this case group. We come back to this under No. 59 ff.
dd) Objectively mixed ("also foreign") transactions
It is questionable whether the will to manage the business outside of the company can also be assumed if the business objectively presents itself as both outside business and the managing director's own business. After all, it seems quite possible here that the managing director wants to pursue his own interests as a matter of priority and does not think about the interests of a third party. However, there is no general answer to this question. In view of the case studies formed in practice, it must be examined on a case-by-case basis.
The assumption of the will of a third party to manage the business does not automatically mean that the managing director can assert claims against the principal (on this under no. 70 ff.)!
The case law of the BGH tends to assume that there is sufficient will to manage the business outside of the company and to seek corrections on an unwritten “evaluation level”, as in the case of purely objective business. In contrast, the doctrine tends to adopt a restrictive stance when it comes to the presumption of a will to manage the business outside of the company, in that it rejects the presumption of a sufficient will to manage the business outside of the company.See, for example, explanations and evidence at Thole NJW 2010, 1243 ff. And Lorenz NJW 2009, 2576 f.
In practice, the justification as to whether or not the will of an external business manager can be assumed takes place with a view to the (desired) result. If I give you solution recommendations for the following case groups, it is therefore never the only justifiable solution. It doesn't exist anywhere anyway.
The following case groups are typical:
(1) Private self-help expenses
According to general life experience, there is the presumption that the perception of one's own interests in such cases does not exclude the fact that the managing director has at least also acted with the will of outside business.AG Frankfurt NJW 1990, 917; Buck-Heeb Special law of obligations / 2 marginal no. 44 with further references.
In these cases, you should start from the principle that the security was at least carried out with the will of outside business management.See examples at Palandt-Speak Section 677 marginal number 6; Lorenz NJW 2009, 1025, 1026 f. Under No. IV 1.
Video: Real management without a mandate (§§ 677–686 BGB)
(2) Private sacrifice to avert danger
At first glance, someone who sacrifices his own legal interests in order to protect someone else from harm appears to be conducting an exclusively objectively foreign business. He acts in the interests of the person at risk. However, there are then references to the helper's own legal circle if he is through his victim wants to prevent its own liability for damages. In these cases, averting danger is in the interests of both parties.
Video: Real management without a mandate (§§ 677–686 BGB)
According to H.M., there is a sufficient will to conduct business outside the company in cases of private sacrifice only then to be acceptedwhen the Managing director is not liable even without his intervention and thus, objectively, a business that was entirely alien, namely that of the "rescued" person.See. BGH in BGHZ 38, 270 ff .; PalandtSpeak Section 677 marginal number 6 a.E .; MüKo-Seiler Section 683 marginal number 23; Looschelders Law of Obligations BT Rn. 855, in each case with further references. If, on the other hand, he had made himself liable for damages without his intervention, one assumes a dominant selfishness that leaves no room for sufficient external business management will.
The importance of this approach is particularly important if the managing director would have to be liable regardless of fault. The issue therefore often plays a role in the context of owner liability under Section 7 (1) StVG. The owner's liability is only completely excluded within the framework of the narrow exceptions in §§ 7 Paragraph 2, 17 Paragraph 3 StVG. The will of the owner who evasive in his vehicle to conduct business outside of the company is therefore only very seldom an option.
G drives his car on the country road at normal speed. Cyclist R is driving in front of him. When G tries to overtake him, R is pushed towards the middle of the lane due to a gust of wind. In order not to collide with R, G jerks his car to the left and hits a tree.
A claim for compensation (analogous) §§ 683, 670For the reasons for the analogy see below under marginal 102. is ruled out due to a lack of external management will if G wanted to prevent his own liability for damages with the evasive maneuver. As the owner of the car, he has a no-fault liability obligation under Section 7 (1) StVG. However, this does not apply if liability according to Section 7 (2) StVG would be excluded due to force majeure. This is the case if the accident is based on an external event, brought about from the outside by elementary natural forces or the actions of third parties, which was unpredictable according to human understanding and experience, could not be prevented or rendered harmless with economically viable means even with the greatest care and is not to be accepted because of its frequency. BGH NJW 1990, 1167 f. All prerequisites must be met cumulatively. This is not the case here, since a typical traffic process has occurred when a road user veers out, which human experience has shown cannot be unpredictable.
In the case of the so-called “inevitable events”, which could be involved here, an exclusion of liability is provided for in Section 17 (3) of the StVG. However, this only applies to the distribution of liability when vehicles are involved, as can be seen from the reference to Section 17 (1) and (2) StVG.
A liability exclusionary contributory negligence of the R according to § 9 StVG in conjunction with § 254 does not result from the facts either.
Since G should have been responsible for the damage in the event of a collision, he avoided his own liability by taking the evasive maneuver and thus acted in his own interest. In the absence of the will of external management, the application of the rules via the real GoA is neither direct nor analogous.
It is possible that you consider the affirmation of the will to run the business outside of the company, depending on the manager's liability, as a very artificial and unrelated differentiation - you would be right. This perspective is based on the result and is based on the following consideration:
Expenses and damages from a private sacrifice to avert an accident should not be reimbursed according to GoA rules (§§ 677, 683 S. 1, 670) if the managing director prevents his own liability with the defensive measure.A contributory negligence of the "rescued" does not matter. Because if the managing director himself would have been liable in the event of the accident, he must even more bear his own damage and expenses that arise from trying to avoid the damage that would otherwise be attributable to him. BGHZ 38, 270 ff .; PalandtSpeak Section 677 marginal number 6a.E .; Buck-Heeb Special law of obligations / 2 marginal number 25.
This reason for the result is plausible. One can certainly argue about the path, negation of any foreign business management will.
In these cases, I recommend the following options: Either you answer in the negative, as in the above example with the h.M. the will to manage the external business. Alternatively, you could postpone the determination of a sufficient will to manage the business outside of the company and in the same breath deny the application of the GoA rules "at least" with reference to the aforementioned evaluation reasons.
(3) Defense under public law
A manufactures a pressure sensitive adhesive that is used for the production and rehabilitation of tarred pavements. The adhesive is delivered to the respective construction site in truck tank trailers. For the purpose of renovating the ceiling of a street, B needs A's glue and buys several tank loads. As agreed, A delivers the adhesive in a tank trailer. A week later it was found that approx. 1500 l of the adhesive had leaked and got into the sewer system. The responsible water protection authority therefore ordered the necessary remedial measures. In this context, she also asked for administrative assistanceSee §§ 4 ff. VwVfG NRW. of the Technical Relief Organization, which, as a federal agency with no legal capacity, is supported by the Federal Republic of Germany. As a result, the Federal Republic incurs expenses of € 45,000, which it seeks reimbursement from A and B as joint and several debtors.
The cases are characterized by the fact that the public authority has once performed its own sovereign duties to avert danger under public law and thus at the same time fulfills an obligation of the interferer.
in the example On the one hand, the Federal Republic of Germany ran its own business objectively through the relief organization, since it acted as an official aid for the purpose of public law hazard prevention. At the same time, however, it also got a deal for A and B, who as troublemakers were responsible for repairing the damage under public law (e.g. according to §§ 5 Paragraph 1, Paragraph 2 PolG NRW) and private law (§§ 862, 1004) .
The following consideration speaks against the assumption that the public authority acts in such cases at least willingly in the interests of the interferers responsible under hazard prevention law: Anyone who performs public law tasks through their activities does not want and may not submit to the will of the principal. Sections 677 et seq. Oblige to do so, as can be seen particularly clearly from Section 681, sentence 1. However, if you do not want to be guided by the will of the managing director from the outset and do not want to be subordinate to it, you probably do not act with the will of an outside manager.So Medicus / Petersen Civil law marginal number 412; Looschelders Law of Obligations BT, margin no. 850. On the other hand, it can be objected that the assumption of the will of an external manager must be separated from the question of whether the external manager later violated his legal obligations BGH in BGHZ 65, 354 ff. ("Pumice stone pit case"). It is conceivable that someone basically wants to act in the interest of another, but does not act as he or she imagines. The liability rules in §§ 677 Hs. 2, 678–680 are based on this.
The Jurisprudence adheres to the principle in these cases that, in the case of objectively external business as well as objectively external business, a sufficient will to manage the external business is to be presumed. It solves the cases in which there are regularly claims for compensation from §§ 683 S. 1, 670 on the competitive level: The (public) managing director would not be entitled to any claims from GoA, if special (administrative) provisions the relationship between Managing directors and business owners regulate differently. These are then given priority and should not be undermined by applying the GoA. In particular, the type, scope and method of reimbursement are then based on these special rules without exception.See judgment of BGH from 13.11.2003 (Az: III ZR 70/03) = BGHZ 156, 394 ff. = NJW 2004, 513 ff. and from 19.7.2007 (Az: III ZR 20/07) under No. 8 f.
The h.L. denies the will of a third party to manage the business with the well-justified indication that the managing director, who is responsible for averting danger, does not want to subordinate himself to the will of the beneficiary from the outset.So Medicus / Petersen Civil law marginal number 412; Looschelders Law of Obligations BT Rn. 850; Thole NJW 2010, 1243, 1247 f. Under Item V 3. There is no later change of will for the managing director. However, if the managing director does not want to comply with the non-profit model of the GoA in accordance with § 681 from the start, an external management will is at least refuted.
In these cases, you should first consider whether the question of the will to manage the external business needs to be answered or whether it can be left open. It can be left open if there are special public law rules for the relevant claims (e.g. reimbursement of costs). In any case, the GoA rules will then be supplanted by competition. If this is not evident, there is more evidence to suggest that the H.L. to deny the will of the outside management and to let the application of the GoA fail at this stage.
(4) Fulfillment of private obligations with a third party
Similar difficulties arise when the managing director acts on the basis of obligations under private law. If there is an obligation to the intended business owner, the matter is still simple: The GoA rules are not applicable from the outset, because the fulfillment of a debt can in fact not be an “unauthorized” or “unjustified” agency for the creditor.
Things are more difficult and controversial when the managing director is not obliged to all persons who objectively benefit directly from his performance. Here, again, two typical variants can be distinguished:
(a) Performance on the object of a third party
U undertook to provide repair services to apartments owned by B and managed by W to W GmbH. Since W is insolvent after the work has been completed, U cannot realize his wage claim with W and now wants to stick to B.
in the example On the one hand, the provision of services represents an objectively separate business of the managing director U, as he thereby fulfills his obligations under the contract concluded with W. On the other hand, the business also directly benefits owner B. Your property will be preserved, for which it is actually responsible according to the comprehensive allocation of powers in § 903. However, U has not concluded a contract with B. There was also no other reason that would have obliged the B to carry out the repair to U.
In these cases, the debtor seems to be urgently pursuing his own purposes in the provision of services, despite the objective situation: he wants to fulfill his duty and - in the case of paid activity - earn his remuneration at the same time. Therefore, one can assume a sufficient will to manage the business outside of the company - that is probably the case h.L. - reject it with good reasons despite being "also foreign".E.g. Thole NJW 2010, 1243, 1247 under Clause V 3; Lorenz NJW 1996, 883, 885; Looschelders Law of Obligations BT Rn. 852. As a rule, the will to conduct a business outside the company cannot be inferred from the other circumstances.
In particular the BGH but also in these case constellations basically adheres to the presumption of the will of foreign business management in the case of foreign business and seeks the Correction again on a separate, unwritten evaluation level.E.g. judgment of BGH dated October 21, 2003 (Az: X ZR 66/01) = NJW-RR 2004, 81 et seq. under No. III 2a mwN He can justify the fact that the debtor can be well aware of the benefit of his behavior and also of his will corresponds to. In addition, parallels can certainly be drawn to the construction of the contract with protective effect in favor of third parties, in which, according to §§ 133, 157 it is also assumed that the debtor will probably include the protection of the identifiable interests of third parties if this is done in good faith See in the script S_JURIQ-SchuldAT2 / Teil_4 / Kap_D / Abschn_V / Nr_3 / Rz_374S_JURIQ-SchuldAT2 / Teil_5 / Kap_B / Abschn_I / Nr_1 / Rz_374 "Law of Obligations AT II" under Rn. 374 et seq. "Law of Obligations AT II" under Rn . 374 ff.
Similar to the cases of a public-law hazard defense, the case law rejects a Application of the GoA rules, however, fromwhen the obligation is on one with a third party effectively concluded contract, which comprehensively regulates the rights and obligations of the managing director, in particular the question of remuneration. Such a regulation within the contractual relationship is fundamentally final with regard to the compensation for the respective service provided, also in relation to third parties.Judgment of the BGH from October 21, 2003 (Az: X ZR 66/01) = NJW-RR 2004, 81 and from April 15, 2004 (Az: VII ZR 212/03) = NJW-RR 2004, 956 f .; PalandtSpeak Section 677 marginal number 7a. Contractual agreements cannot work to the detriment of uninvolved third parties. If the parties want to bring about claims against a third party, they have the opportunity to achieve this by agreeing with him, in particular to include him in their agreement.
in the example there is no difference between the two views in the result: U should receive payment from his contract partner W with the agreed remuneration. He couldn't ask for more. The subsequent insolvency of the contractual partner does not change anything here either: The purpose of the institute of management without a mandate is not to absorb the insolvency risk of the parties and to shift it to third parties.BGH loc. cit .; Thole NJW 2010, 1243, 1245 under No. IV 1.
As in the case of public law hazard prevention, in these cases the question of the will to manage the business outside the company can be left open if the managing director is acting on the basis of a contract that has been effectively concluded with another person and his rights and obligations are regulated in this contractual relationship. This will be the case on a regular basis. In any case, the GoA rules will then be supplanted by competition. If, for once, this is not evident, there is more evidence to suggest that the h.L. to deny the will of the outside management and to let the application of the GoA fail at this stage. The solution as to whether there are claims against the third party must then be examined within the framework of the law on enrichment (possibly in conjunction with Section 951).
(b) Performance of a joint and several debtor
Whoever fulfills his obligation as joint and several debtors releases the remaining joint and several debtors in the external relationship to the obligee according to § 422 paragraph 1.See also in the script S_JURIQ-SchuldAT1 / Teil_2 / Kap_C / Abschn_II / Nr_3 / Rz_140S_JURIQ-SchuldAT1 / Teil_2 / Kap_E / Abschn_II / Nr_1 / Bst_a / Rz_140 "Law of Obligations AT I" Rn. 140 ff. "Obligatory Law AT I" Rn Objectively, the service also represents a third-party business because it is owed by several people in parallel (“on one level”). According to the joint and several debt rules, the debtor is entitled to two competing compensation claims: He can take recourse on the one hand according to Section 426 (1) and also in accordance with Section 426 (2) in connection with the claims made by the obligee on him against the other joint and several debtors. The amount of the recourse claims is determined by the compensation rate applicable internally - in case of doubt, the "header rule" of Section 426, Paragraph 1 applies.
Since the performance of a joint and several debtor is also a third party business, the third basis for claims could result from the GoA rules (§§ 683 S. 1, 670). From the wording in Section 426 (1) (“unless otherwise specified”) it follows that the law has not conclusively regulated the settlement of joint and several debtors in Section 426. On the contrary: The other competing claims in particular result in a liability quota deviating from Section 426 (1) in the internal relationship.BGH Judgment of October 6, 2009 (Az: VI ZR 24/09) No. 10 = NJW-RR 2010, 831 ff.According to h.M., the GoA is therefore not automatically implemented by the §§ 421 ff. repressed.BGH loc. cit .; PalandtGrueneberg Section 426 marginal number 1; MüKo-Seiler Section 677 marginal number 28; a.A. Looschelders Law of Obligations BT Rn. 854. Another question is, of course, whether in individual cases a sufficient will to conduct business outside the company can be assumed.
Similar to the above group of cases, the following should also apply here: The joint and several debtors will probably only want to perform because they are obliged to do so themselves.Looschelders Law of Obligations BT Rn. 854. In case of doubt, he will not worry about any co-debtors. A sufficient will to manage the business outside of the company can only be considered if this is unequivocally evident from other circumstances. also PalandtSpeak Section 677 marginal number 7 (for example deliberate “protection” of another joint and several debtor in the external relationship).
(5) Performance without legal reason
If the debtor fulfills his obligation by making a payment to the obligee, there can be no management without an order. How are things, however, when the managing director wants to fulfill a debt with his performance, which however does not exist or no longer exists?
Tenant M carries out cosmetic repairs in the rented apartment before moving out because he considers himself obliged to do so based on the provisions in the rental agreement concluded with V. However, the cosmetic repair clause is ineffective. After knowing the ineffectiveness, M now demands reimbursement of expenses from V according to § 539 Paragraph 1 in conjunction with §§ 677, 683 S. 1, 670.
Perhaps you will now say to yourself that the right to enrichment with its performance conditions was specifically "made" for the question of the reversal of unlawful benefits. If the performer was aware of the nullity, the strict rule of § 814 applies: A condition is excluded. The same applies to the cases of prohibited or immoral services due to § 817. If one party deceived the other about the nullity when concluding the contract or otherwise behaved inconsiderately, claims for damages (e.g. from §§ 280 (1), 311 (1)) may also be considered . In short: there are suitable rules - a suppression of the GoA is obvious.
Nevertheless, the Case law so far In principle, an application of the GoA rules was considered possible, regardless of whether the managing director (= service provider) was aware of the invalidity or not. The reason is as follows: Objectively, the unlawful performance also has a foreign reference because it objectively benefits the alleged creditor as the recipient of the service. This is what the subject of performance is directed towards. In addition, the person who acted from the outset without a contract (GoA then opened without any problems) should not be better off than the person who performed on the basis of a void contract.BGH in BGHZ 37, 258, 263 f. In the case of a business that is also outside the company, a sufficient will to conduct a business outside the company can be assumed. BGH Judgment of July 3, 2008 (Az: III ZR 260/07) under No. 27 = NJW 2008, 3069, 3071; further evidence at Thole NJW 2010, 1243, 1245 under No. III 3 b; PalandtSpeak Section 677 marginal number 7 a.E.
The case law corrected unreasonable results depending on the reason for invalidity through an evaluative consideration.St. Rspr., E.g. judgment of BGH from July 3rd, 2008 (Az: III ZR 260/07) under No. 27 = NJW 2008, 3069, 3071 and from February 17th, 2000 (Az: IX ZR 50/98) = NJW 2000, 1560; PalandtSpeak Section 683 marginal number 8.
Tax advisor and auditor A concludes a consulting contract with B in violation of the Legal Services Act and achieves the return of a property for him. Now he is demanding his contractual fee. However, according to Section 134, the contract is ineffective. The BGH denies A's claim to payment from §§ 683 S. 1, 670 with the result that A was not allowed to consider his illegal activity “necessary” within the meaning of § 670. His activity is therefore not a reimbursable expense. Thus, the BGH prevents the (untenable) result of deriving remuneration claims from illegal or immoral activities and prevents the conditional block of § 817 (against a payment claim from §§ 812 para. 1 sentence 1 var. 1, 818 para. 2).
In the literature the application of the GoA rules in these cases will probably be carried out by the h.L. already rejected on the grounds that a sufficient will to manage the business outside of the company could not be presumed as a rule, since the managing director wanted to fulfill his own duty as a matter of urgency.Looschelders Law of Obligations BT Rn. 853; Thole NJW 2010, 1243, 1248 under Item V 4. Others consider the application of the GoA rules and the presumption of sufficient external business management will to be possible in principle; However, the GoA for the area of the reversal of exchanged services is to be superseded by the enrichment law.Seiler Section 677 marginal number 48; E.g. obligations according to § 677 2nd Hs. 681 can be established in this way.
In the Jurisprudence At least in the cases of undetected nullity there is a "secret" Trend reversal from.Very worth reading about it Thole NJW 2010, 1243 ff. With further examples; Lorenz NJW 2009, 2576 f. The BGH, for example, in its much-noticed decision of May 27, 2009BGH Judgment of May 27, 2009 (Az: VIII ZR 302/07) under No. 20 = BGHZ 188 ff. = NJW 2009, 2590 ff. (With approval from Lorenz on p. 2576 f.). emphasizes that the provider of an (unrecognized) unlawful service is only active in his own legal and interest group. The fact that the success of the service benefits the creditor does nothing to change that. In this way, cases of unlawful performance are no longer understood as business transactions that are also external, but as purely objective business transactions. There is then no longer any room for the presumption of sufficient external management will. This is certainly to be agreed with in the result - the classification as a solely objectively foreign business is convincing in the first place example but not. See also Thole NJW 2010, 1243, 1246 under Item IV 5. The renovation of someone else's apartment is objectively not the responsibility of the tenant, but rather of his landlord, if the renovation clause is ineffective. See the script S_JURIQ-SchuldBT2 / Teil_1 / Kap_A / Abschn_II / Nr_2 / Rz_20S_JURIQ- SchuldBT2 / Teil_1 / Kap_A / Abschn_I / Nr_1 / Bst_a / 2Bst_cc / Ziff_ (2) / Rz_20 "Law of Obligations BT II" Rn. 20 "Law of Obligations BT II" Rn. 20, S_JURIQ-SchuldBT2 / Teil_1 / Kap_B / Abschn_I / Nr_4 / Bst / Rz_61S_JURIQ-SchuldBT2 / Teil_1 / Kap_A / Abschn_I / Nr_5 / Bst_b / 2Bst_aa / Rz_6161 ff. 61 ff. If this is also the owner, the assignment of the business results from § 903.
In these cases you should objectively assume a business that is also foreign to you, but in the event of undetected nullity with the h.L. deny sufficient will to manage the business outside of the company. Whoever wants to fulfill, wants to pay off his own (alleged) debt and thus become active in his own circle of duties as a matter of priority. The fact that the creditor benefits from the performance result does not change this: the debtor has only fulfilled his own obligation if and because the creditor benefits from the performance result. In the case of mutual (void) contracts, there is also the following motive: The debtor pays in order to fulfill and thus to earn his remuneration.
If nullity is recognized, however, the debtor knows that he is not obliged to perform. Here it seems preferable to negate the GoA (first) on the unwritten evaluation level: The GoA is superseded by rules of the law of enrichment (§§ 814, 817, 818 Paragraph 3!), Which would otherwise be undermined. The h.L. also points to this aspect. always complementary.See evidence in marginal 58.
(6) Person of the principal
The person of the principal emerges from your examination under the aspect "for someone else". This can be several people.PalandtSpeak Section 677 marginal number 8; MüKo-Seiler Section 677 marginal number 8.
At objectively strangers or also-strangers Business is the owner to whom the business is objectively (also) assigned.MüKo-Seiler Section 686 marginal number 2. The principal is the person who objectively concerns the business.
A puts out a fire in the house that belongs to co-owners B and C. He runs a business from and - so the assumption - for B and C.
Errors of the managing director about the person of the managing director are irrelevant for objectively (also) strangers according to § 686.
A means in the foregoing examplethat the burning house belongs to D. Business owners are nonetheless the actual owners B and C.
At the subjectively strange business Only the direction of will of the managing director decides on the person (s) of the principal.Ermann-Husband Section 686 marginal number 1; a.A. Palandt-Speak Section 686 marginal number 1. This results from the following consideration:
In the case of an objectively neutral transaction, there is no room for determining the person of the principal according to the content of the transaction. It is neutral, so it is not specifically assigned to either the principal or the managing director.
In the case of an objectively own business, which, in exceptional cases, acquires its subjective strangeness through an actually urgent external business management will, the application of the GoA rules is at least theoretically recognized (see above under No. 42). This recognition, however, presupposes that the objective strangeness cannot be decisive for the assignment here. Otherwise the person of the managing director and the principal would coincide - an obligation according to §§ 677 ff. Could not arise.
c) Without an order or other authorization
Furthermore, the facts of the real GoA within the meaning of Section 677 require action without the mandate of the principal or an otherwise existing authorization vis-à-vis the principal. The attribute “order” should not exclude other contract types.Looschelders Law of Obligations BT Rn. 856. With the whole formulation are total such legal relationships based on a contract or by law meant that the managing director to take action authorize or even oblige the principal to do so and which contain their own rules for the balance between the principal and the managing director.MüKo-Seiler Section 677 marginal number 43.
Due to special compensation regulations, the GoA is excluded, for example, when working on the basis of a contract (order, service, work or agency agreement), when parents work towards their children (§§ 1601 ff .; 1626 ff.The scheme in
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