Will dissent continue to be legal
§§ 154, 155 BGB: An overview of consensus and dissent
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For a contract are two corresponding declarations of intent, the offer and the acceptance. If this is given, one speaks of a consensus. Consensus is therefore the prerequisite for the conclusion of a contract, whereby the agreement must primarily refer to the essentialia negotii of the contract. If necessary, one can also determine by interpretation whether there is a consensus between the parties [Rüthers / Stadler, BGB AT, § 19 Rn. 37].
It is also noteworthy that a consensus can also exist if the parties have objectively actually made different statements. The applies Principle of falsa demonstratio non nocet. The decisive factor is that they actually want the same subjectively [Rüthers / Stadler, BGB AT, § 19 Rn. 37].
In addition, when it comes to the question of whether the contract has come about, the §§ 315-319 BGB not to be disregarded after any of the Contract partner or an outsider granted a right of determination can be.
On the other hand, there is a dissent if Offer and acceptance do not correspond. An agreement has not been reached in this case, so there is no contract. From this it follows that §§ 154, 155 BGB, which deal with the dissent, can only be applied if there is disagreement between the parties regarding an ancillary regulation of the contract [Rüthers / Stadler, BGB AT, § 19 Rn. 38] .
In addition, one can distinguish between an open and a covert dissent.
1. Open dissent
§ 154 BGB concerns the case of open dissent. According to § 154 I 1, the contract is not concluded in case of doubt as long as the parties have not agreed on all points on which, according to the declaration, an agreement is to be made by even one party.
The phrase “when in doubt” already shows that Section 154 is merely a rule of interpretation contains, regarding which the parties can make a different agreement [Rüthers / Stadler, BGB AT, § 19 marginal number 40].
Open dissent is characterized by the fact that the parties know that a full agreement on the content of the contract has not yet been reached [Rüthers / Stadler, BGB AT, § 19 Rn. 39].
2. Hidden dissent
In the case of a hidden dissent, there is also no agreement between the parties with regard to a subsidiary point of the contract. In contrast to open dissent, they are However, parties are not aware of this [Rüthers / Stadler, BGB AT, § 19 Rn. 41]. In this situation, § 155 BGB applies. This reads:
If, in a contract that they consider to be concluded, the parties have not in fact agreed on a point on which an agreement should be made, what has been agreed applies. This is only to be assumed if the contract would be concluded without a provision on this point.
If the contract is concluded in accordance with this provision despite the hidden dissent, the loophole must be closed by a supplementary interpretation of the contract, §§ 133, 157 BGB [Rüthers / Stadler, BGB AT, § 19 Rn. 43].
Rüthers, Bernd / Stadler, Astrid: General part of the BGB, 18th edition, Munich 2014.
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