06 Sales Contract - Performance

Question 1

Two main apsects of a sales contract

Answer 1

• performance obligation (§433) = primary duties
• secondary duties (§241 para 2 BGB) = taking into account rights, legal interests and others interest of other party

Question 2

What does exclusion of the duty of perfromance mean?

Answer 2

• §275
• a claim for performance is excluded in so dar as it is impossible for the debtor or for anyone else

Question 3

What kind of impossibility is there and what does it mean?

Answer 3

• objective impossibility: impossible for anyone at all to perform whether from the very beginning or after the conclusion of the contract
• subjective: it is impossible for the debtor to perform

Question 4

1. Impossibility at the very beginning:
2. Impossibility after the conclusion of the contract:

Answer 4

1. initial impossibility
2. subsequent impossibility

Question 5

Name all kinds of impossibilities

1.
2.
3.
4.

Answer 5

• objective impossiblity (NO one)
• subjective impossibility (debtor cannot)
• initial impossibility (from beggining)
• subsequent impossibility (after conclusion of the contract)

Question 6

What is the name of the combination of subsequent (objective) impossibility?

Answer 6

• fault decisive

Question 7

What does improper performance imply?

1.
2.

Answer 7

• §433: seller must procure the thing for the buyer free from material and legal defects
• 434: it is free from material effects if the thing has the agreed quality - if no quality was agreed, it has to be of adequate use and must match the buyer´s expectations of the thing

Question 8

What is the right to cure?

Answer 8

• §439
• the buyer may demand that the defect is remedied or a thing free of defects is supplied

Question 9

Why is the right to cure designed as a right of the seller and not of the buyer?

Answer 9

• seller gets a second chance / offer to perform, otherwise he could rght away be sued for compensation

Question 10

Why is it important for the buyer to have a right to cure?

Answer 10

• flexible and simple solution

Question 11

§311: An obligation with duties under section 241 (2) also comes into existence by…

Answer 11

1. the commencement of contract negotiations
2. the initiation of a contract where one party, gives the other party the possibility of affecting his rights (=sphere of control!!)