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=U3= Sec320 -- Section 320 Defence of unperformed contract
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=S=> BGB 320. 1 A person who is a party to a reciprocal contract may refuse his part of the performance until the other party renders consideration , unless he is obliged to perform in advance . If performance is to be made to more than one person , an individual person may be refused the part performance due to him until the complete consideration has been rendered . The provision of section 273 ( 3 ) does not apply .
=S=> BGB 320. 2 If one party has performed in part , consideration may not be refused to the extent that refusal , in the circumstances , in particular because the part in arrears is relatively trivial , would be bad faith .
=U3= Sec321 -- Section 321 Defence of uncertainty
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=S=> BGB 321. 1 A person who is obliged to perform in advance under a reciprocal contract may refuse to render his performance if , after the contract is entered into , it becomes apparent that his entitlement to consideration is jeopardised by the inability to perform of the other party . The right to refuse performance is not applicable if consideration is rendered or security is given for it .
=S=> BGB 321. 2 The person required to perform in advance may specify a reasonable period in which the other party must , at his choice , render consideration or provide security reciprocally and simultaneously against performance . If the period ends without result , the person required to perform in advance may withdraw from the contract . Section 323 applies with the necessary modifications .
=U3= Sec322 -- Section 322 Order to perform reciprocally and simultaneously
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=S=> BGB 322. 1 If a party brings an action for performance due to him on the basis of a reciprocal contract , the assertion by the other party of his right to refuse performance until consideration is rendered merely has the effect that the latter party is to be ordered to perform reciprocally and simultaneously .
=S=> BGB 322. 2 If the party bringing the action must perform in advance , then , if the other party is in default of acceptance , he may bring an action for performance after receiving consideration .
=S=> BGB 322. 3 The provision in section 274 ( 2 ) applies to the execution of judgment .
=U3= Sec323 -- Section 323 Withdrawal for nonperformance or for performance not in conformity with the contract* )
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=S=> BGB 323. 1 If , in the case of a reciprocal contract , the obligor does not render an act of performance which is due , or does not render it in conformity with the contract , then the obligee may withdraw from the contract , if he has specified , without result , an additional period for performance or cure .
=S=> BGB 323. 2 The specification of a period of time can be dispensed with if the obligor seriously and definitively refuses performance , the obligor does not render performance by a date specified in the contract or within a specific period and the obligee , in the contract , has made the continuation of his interest in performance subject to performance being rendered in good time , or there are special circumstances which , when the interests of both parties are weighed , justify immediate withdrawal .
=S=> BGB 323. 3 If the nature of the breach of duty is such that setting a period of time is out of the question , a warning notice is given instead .
=S=> BGB 323. 4 The obligee may withdraw from the contract before performance is due if it is obvious that the requirements for withdrawal will be met .
=S=> BGB 323. 5 If the obligor has performed in part , the obligee may withdraw from the whole contract only if he has no interest in part performance . If the obligor has not performed in conformity with the contract , the obligee may not withdraw from the contract if the breach of duty is trivial .
=S=> BGB 323. 6 Withdrawal is excluded if the obligee is solely or very predominantly responsible for the circumstance that would entitle him to withdraw from the contract or if the circumstance for which the obligor is not responsible occurs at a time when the obligee is in default of acceptance .
=S=> BGB 323.* ) Official note : This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees ( OJ L 171 , p . 12 ) .
=U3= Sec324 -- Section 324 Withdrawal for breach of a duty under section 241 ( 2 )
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=S=> BGB 324 If the obligor , in the case of a reciprocal contract , breaches a duty under section 241 ( 2 ) , the obligee may withdraw from the contract if he can no longer reasonably be expected to uphold the contract .
=U3= Sec325 -- Section 325 Damages and withdrawal
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=S=> BGB 325 The right to demand damages in the case of a reciprocal contract is not excluded by withdrawal .
=U3= Sec326 -- Section 326 Release from consideration and withdrawal where the duty of performance is excluded* )
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=S=> BGB 326. 2 If the obligee is solely or very predominantly responsible for the circumstance due to which the obligor does not , under section 275 ( 1 ) to ( 3 ) , have to effect cure , or if this circumstance for which the obligor is not responsible occurs at a time when the obligee is in default of acceptance , the obligor retains the entitlement to consideration . However , he must allow to be credited against him what he saves due to release from performance or acquires or wilfully fails to acquire from other use of his labour .
=S=> BGB 326. 3 If the obligee demands , under section 285 , return of reimbursement obtained for the object owed or assignment of the claim to reimbursement , he remains obliged to render consideration . However , the latter is reduced under section 441 ( 3 ) to the extent that the value of the reimbursement or of the claim to reimbursement falls short of the value of the performance owed .
=S=> BGB 326. 4 To the extent that the consideration that is not owed under this provision is effected , what is performed may be claimed back under sections 346 to 348.
=S=> BGB 326. 5 If , under section 275 ( 1 ) to ( 3 ) , the obligor does not have to perform , the obligee may withdraw ; section 323 applies with the necessary modifications to the withdrawal , subject to the proviso that it is not necessary to specify a period of time .
=S=> BGB 326.* ) Official note : This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees ( OJ L 171 , p . 12 ) .
=U3= Sec327 -- Section 327 repealed
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