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=U3= UTit1 -- Subtitle 1 Creation
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=U4= Sec311 -- Section 311 Obligations created by legal transaction and obligations similar to legal transactions
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=S=> BGB 311. 1 In order to create an obligation by legal transaction and to alter the contents of an obligation , a contract between the parties is necessary , unless otherwise provided by statute .
=S=> BGB 311. 2 An obligation with duties under section 241 ( 2 ) also comes into existence by the commencement of contract negotiations the initiation of a contract where one party , with regard to a potential contractual relationship , gives the other party the possibility of affecting his rights , legal interests and other interests , or entrusts these to him , or similar business contacts .
=S=> BGB 311. 3 An obligation with duties under section 241 ( 2 ) may also come into existence in relation to persons who are not themselves intended to be parties to the contract . Such an obligation comes into existence in particular if the third party , by laying claim to being given a particularly high degree of trust , substantially influences the pre-contract negotiations or the entering into of the contract .
=U4= Sec311a -- Section 311a Obstacle to performance when contract is entered into
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=S=> BGB 311a. 1 A contract is not prevented from being effective by the fact that under section 275 ( 1 ) to ( 3 ) the obligor does not need to perform and the obstacle to performance already exists when the contract is entered into .
=S=> BGB 311a. 2 The obligee may , at his option , demand damages in lieu of performance or reimbursement of his expenses in the extent specified in section 284. This does not apply if the obligor was not aware of the obstacle to performance when entering into the contract and is also not responsible for his lack of awareness . Section 281 ( 1 ) sentences 2 and 3 and ( 5 ) apply with the necessary modifications .
=U4= Sec311b -- Section 311b Contracts on plots of land , assets and an estate
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=S=> BGB 311b. 1 A contract by which one party agrees to transfer or acquire ownership of a plot of land must be recorded by a notary . A contract not entered into in this form becomes valid with all its contents if a declaration of conveyance and registration in the Land Register are effected .
=S=> BGB 311b. 2 A contract by which one party agrees to transfer his future property or a fraction of his future property or to charge it with a usufruct is void .
=S=> BGB 311b. 3 A contract by which one party agrees to transfer his present property or a fraction of his present property or to charge it with a usufruct must be recorded by a notary .
=S=> BGB 311b. 4 A contract relating to the estate of a third party who is still living is void . The same applies to a contract relating to a compulsory portion or a legacy from the estate of a third party who is still living .
=S=> BGB 311b. 5 Subsection ( 4 ) above does not apply to a contract entered into between future heirs on intestacy relating to the hereditary share on intestacy or the compulsory portion of one of them . Such a contract must be recorded by a notary .
=U4= Sec311c -- Section 311c Application to accessories
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=S=> BGB 311c If a person agrees to dispose of or charge a thing , that duty , in case of doubt , also applies to accessories of the thing .
=U3= UTit2 -- Subtitle 2 Particular types of sale* ) * ) Official note : This subtitle serves to implement 1. Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises ( OJ L 372 of 31 December 1985 , p . 31 ) , 2. Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts ( OJ L 144 , p . 19 ) , 3. and Articles 10 , 11 and 18 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services , in particular electronic commerce , in the Internal Market ( “Directive on electronic commerce” OJ L 178 , p . 1 ) .
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=U4= Sec312 -- Section 312 Right of revocation in the case of doorstep transactions
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=S=> BGB 312. 1 In a contract between an entrepreneur and a consumer the subject matter of which is performance for remuneration and which the consumer has been induced to enter into by oral negotiations at his place of employment or in the area of a private home , on the occasion of a leisure event carried out by the entrepreneur or by a third party at least in part in the interest of the entrepreneur , or following an impromptu approach in means of transport or in publicly accessible circulation areas
=S=> BGB 312. d transaction ) the consumer has a right of revocation under section 355. In lieu of a right of revocation the consumer may be granted a right of return under section 356 , if , in connection with this or a later transaction , a permanent connection is also to be maintained between the consumer and the entrepreneur .
=S=> BGB 312. 2 The necessary instruction on the right of revocation or right of return must refer to the legal consequences of section 357 ( 1 ) and ( 3 ) .
=S=> BGB 312. 3 The right of revocation or right of return , notwithstanding other provisions , does not exist in the case of insurance contracts or if in the case of subsection ( 1 ) no . 1 , the oral negotiations on the basis of which the contract was entered into were conducted in response to a previous order placed by the consumer , or the performance is immediately rendered and paid for at the conclusion of the negotiations and remuneration does not exceed forty euros , or the declaration of intention of the consumer has been recorded by a notary .
=U4= Sec312a -- Section 312a Relationship to other provisions
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=S=> BGB 312a If the consumer is at the same time entitled under other provisions to a right of revocation or a right of return under section 355 or section 356 of this Code , or under section 126 of the Investment Act [ Investmentgesetz ] , the right of revocation or return under section 312 is excluded .
=U4= Sec312b -- Section 312b Distance contracts
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=S=> BGB 312b. 1 Distance contracts are contracts for the supply of goods or the rendering of services , including financial services , which are entered into between an entrepreneur and a consumer solely by the use of means of distance communication , except where the entering into of the contract does not take place in the context of a sales or service system organised for distance sales . Financial services in the meaning of sentence 1 are banking services and services in connection with the granting of a credit , insurance , provision for old age for individuals , investment or payment .
=S=> BGB 312b. 2 Means of distance communication are means of communication which can be used to initiate or to enter into a contract between a consumer and an entrepreneur without the simultaneous physical presence of the parties to the contract , including without limitation letters , catalogues , telephone calls , faxes , emails , and radio , teleservices and media services .
=S=> BGB 312b. 3 The provisions on distance contracts do not apply to contracts relating to correspondence courses ( section 1 of the Correspondence Course Act [ Fernunterrichtsschutzgesetz ] ) , relating to time sharing of residential buildings ( section 481 ) , relating to insurance policies and their brokerage , relating to the disposal of plots of land and rights equivalent to real property , the creation , disposal and cancellation of real rights in plots of land and rights equivalent to real property and the erection of buildings , relating to the supply of food products , beverages or other household objects of everyday use which are supplied to the residence , place of abode or place of employment of a consumer by entrepreneurs in the course of frequent and regular rounds , relating to the rendering of services in the fields of lodging , transport , delivery of food and beverages as well as leisure activities , if the entrepreneur , when the contract is entered into , agrees to render the services at a specific time or within a precisely indicated period of time , that are entered into a)with the use of automatic vending machines or automated business premises , or b)with operators of means of telecommunications on the basis of the use of public telephones , to the extent that they have the use of the latter as their subject matter .
=S=> BGB 312b. 4 In the case of contractual relationships that consist of an initial agreement with transactions following upon it or a series of separate transactions following upon it of the same type that have a temporal connection , the provisions on distance contracts only apply to the first agreement . If such transactions follow one another without such an agreement , the provisions on the duties of an entrepreneur to provide information apply only to the first transaction . However , if no transaction of the same type occurs for longer than one year , the next transaction is deemed to be the first transaction of a new series within the meaning of sentence 2.
=S=> BGB 312b. 5 More extensive provisions regarding consumer protection remain unaffected .
=U4= Sec312c -- Section 312c Giving information to a consumer in distance contracts
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=S=> BGB 312c. 3 In the case of financial services , the consumer may demand at any time in the duration of the contract that the entrepreneur provides him with the terms of the contract , including the standard business terms , in a document .
=S=> BGB 312c. 4 More extensive restrictions in the use of means of distance communication and more extensive duties to provide information under other provisions are unaffected .
=U4= Sec312d -- Section 312d Right of revocation and right of return in distance contracts
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=S=> BGB 312d. 1 In a distance contract the consumer has a right of revocation under section 355. In lieu of the right of revocation , the consumer may , in contracts for the supply of goods , be granted a right of return under section 356.
=S=> BGB 312d. 2 Notwithstanding section 355 ( 2 ) sentence 1 , the revocation period does not commence before the duties to provide information under section 312c ( 2 ) have been performed ; in the case of the supply of goods , not before the day on which they reach the receiver ; in the case of recurring deliveries of goods of the same kind , not before the day on which the first part delivery reaches the receiver ; and in the case of services , not before the day on which the contract is entered into .
=S=> BGB 312d. 3 In the case of a service , the right of revocation is also extinguished if the contract was performed in full by both parties at the express wish of the consumer before the consumer exercised his right of revocation .
=S=> BGB 312d. 4 Unless otherwise specified , the right of revocation does not exist for distance contracts for the supply of goods produced according to customer specifications or clearly tailored to personal needs or which , by reason of their quality , are not suitable for return or may spoil quickly or whose expiration date would be exceeded , for the delivery of audio or video recordings or of software where the seal on the data carriers has been broken by the consumer , for the delivery of newspapers , periodicals and magazines , unless the consumer has given his contractual acceptance by telephone , for the rendering of betting and lottery services , unless the consumer has given his contractual acceptance by telephone , which are entered into in the form of auctions ( section 156 ) , the subject matter of which is the supply of goods or the rendering of financial services whose price is subject to fluctuations on the financial market over which the entrepreneur has no influence and which may occur within the revocation period , including in particular services in connection with shares , dividend coupons which are issued by an investment management company or a foreign investment company , and other tradeable securities , foreign currency , derivatives or money market instruments , or , for the rendering of telecommunications-aided services rendered directly by telephone or fax at one time at the request of the consumer insofar as these are not financial services .
=S=> BGB 312d. 5 In addition , the right of revocation does not exist for distance contracts for which the consumer , under sections 495 or 499 to 507 , already has a right of revocation or right of return under section 355 or section 356. In the case of such contracts , subsection ( 2 ) applies with the necessary modifications .
=S=> BGB 312d. 6 In the case of distance contracts for services , the consumer , notwithstanding section 357 subsection ( 1 ) , must only make compensation for the value of the service performance under the provisions on statutory withdrawal from an agreement if , before he made his contract declaration , his attention was directed to this legal consequence and if he expressly agreed to the entrepreneur beginning to perform the service before the end of the revocation period .
=U4= Sec312e -- Section 312e Duties in electronic business dealings
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=S=> BGB 312e. 1 If an entrepreneur uses a teleservice or media service in order to enter into a contract for the supply of goods or the rendering of services ( e-commerce contract ) , he must provide the customer with reasonable , effective and accessible technical means with the aid of which the customer may identify and correct input errors prior to making his order , notify the customer clearly and comprehensibly of information specified in the statutory order under Article 241 of the Introductory Act to the Civil Code [ Einführungsgesetz zum Bürgerlichen Gesetzbuch ] in good time prior to sending his order , confirm receipt of the order without undue delay by electronic means for the customer , and make it possible for the customer to retrieve the contract terms including the standard business terms when the contract is entered into and save them in a form that allows for their reproduction . The order and the acknowledgement of receipt in the meaning of sentence 1 no . 3 are deemed to have been received if the parties for whom they are intended are able to retrieve them in normal circumstances .
=S=> BGB 312e. 2 Subsection ( 1 ) sentence 1 nos . 1 to 3 does not apply if the contract is entered into exclusively by personal communication . Subsection ( 1 ) sentence 1 nos . 1 to 3 and sentence 2 does not apply if otherwise agreed in a contract between parties who are not consumers .
=S=> BGB 312e. 3 More extensive duties to provide information under other provisions are unaffected . If the customer has a right of revocation under section 355 , the revocation period does not begin , notwithstanding section 355 ( 2 ) sentence 1 , until the duties laid down in subsection ( 1 ) sentence 1 have been performed .
=U4= Sec312f -- Section 312f Termination and power of attorney to terminate
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=S=> BGB 312f If a continuing obligation is established between an entrepreneur and a consumer pursuant to this subtitle intended to substitute a continuing obligation existing between the consumer and another entrepreneur , and on the occasion of the establishment of the continuing obligation the consumer declares the termination of the existing continuing obligation and commissions the entrepreneur or a third party commissioned by the latter to transmit the termination to the previous contractual partner of the consumer , or empowers the entrepreneur or a third party commissioned by the latter to declare the termination towards the consumer’s previous contractual partner , the consumer’s termination or the power of attorney shall require to be in text form .
=U4= Sec312g -- Section 312g Deviating agreements
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=S=> BGB 312g There may be no derogation from the provisions of this subtitle , unless otherwise provided , to the disadvantage of the consumer or the customer . Unless otherwise provided , the provisions of this subtitle apply even if they are circumvented by other constructions .
=U3= UTit3 -- Subtitle 3 Adaptation and ending of contracts
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=U4= Sec313 -- Section 313 Interference with the basis of the transaction
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=S=> BGB 313. 1 If circumstances which became the basis of a contract have significantly changed since the contract was entered into and if the parties would not have entered into the contract or would have entered into it with different contents if they had foreseen this change , adaptation of the contract may be demanded to the extent that , taking account of all the circumstances of the specific case , in particular the contractual or statutory distribution of risk , one of the parties cannot reasonably be expected to uphold the contract without alteration .
=S=> BGB 313. 2 It is equivalent to a change of circumstances if material conceptions that have become the basis of the contract are found to be incorrect .
=S=> BGB 313. 3 If adaptation of the contract is not possible or one party cannot reasonably be expected to accept it , the disadvantaged party may withdraw from the contract . In the case of continuing obligations , the right to terminate takes the place of the right to withdraw .
=U4= Sec314 -- Section 314 Termination , for a compelling reason , of contracts for the performance of a continuing obligation
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=S=> BGB 314. 1 Each party may terminate a contract for the performance of a continuing obligation for a compelling reason without a notice period . There is a compelling reason if the terminating party , taking into account all the circumstances of the specific case and weighing the interests of both parties , cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period .
=S=> BGB 314. 2 If the compelling reason consists in the breach of a duty under the contract , the contract may be terminated only after the expiry without result of a period specified for relief or after a warning notice without result . Section 323 ( 2 ) applies with the necessary modifications .
=S=> BGB 314. 3 The person entitled may give notice only within a reasonable period after obtaining knowledge of the reason for termination .
=S=> BGB 314. 4 The right to demand damages is not excluded by the termination .
=U3= UTit4 -- Subtitle 4 Unilateral rights to specify performance
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=U4= Sec315 -- Section 315 Specification of performance by one party
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=S=> BGB 315. 1 Where performance is to be specified by one of the parties to the contract , then in case of doubt it is to be assumed that the specification is to be made at the reasonably exercised discretion of the party making it .
=S=> BGB 315. 2 The specification is made by declaration to the other party .
=S=> BGB 315. 3 Where the specification is to be made at the reasonably exercised discretion of a party , the specification made is binding on the other party only if it is equitable . If it is not equitable , the specification is made by judicial decision ; the same applies if the specification is delayed .
=U4= Sec316 -- Section 316 Specification of consideration
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=S=> BGB 316 If the extent of the consideration promised for an act of performance is not specified , then in case of doubt the party that is owed the consideration is entitled to make the specification .
=U4= Sec317 -- Section 317 Specification of performance by a third party
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=S=> BGB 317. 1 Where specification of performance is left to a third party , then in case of doubt it is to be assumed that the specification is to be made at the reasonably exercised discretion of the third party .
=S=> BGB 317. 2 If the specification is made by more than one third party , then in case of doubt , the agreement of all parties is necessary ; where an amount is to be specified and several amounts are specified , then in case of doubt , the average amount applies .
=U4= Sec318 -- Section 318 Avoidance of specification
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=S=> BGB 318. 1 The specification of performance made by a third party is effected by declaration to one of the parties to the contract .
=S=> BGB 318. 2 Only the parties to the contract are entitled to avoid the specification made for mistake , duress or deceit ; the opponent is the other party . Avoidance must occur without undue delay after the opponent has obtained knowledge of the grounds for avoidance . Avoidance is excluded if thirty years have passed since the specification was made .
=U4= Sec319 -- Section 319 Ineffectiveness of the specification ; substitution
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=S=> BGB 319. 1 If the third party is to specify performance at its reasonably exercised discretion , the specification made is not binding on the parties to the contract if it is evidently inequitable . The specification is made in this case by judicial decision ; the same applies if the third party cannot or does not want to make the specification or if it delays it .
=S=> BGB 319. 2 If the third party is to make the specification at its free discretion , the contract is ineffective if the third party cannot or does not want to make the specification or if it delays it .
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