Script C Flashcards
Declaration of Intent and Contract
What is a declaration of intent?
any statement that is made with the intention of bringing about a legal consequence
If a declaration of intent is to be made to another, it only becomes effective when it is “received” by the other. Where is it regulated?
Section 130 Subsection 1 Sentence 1 CC
A declaration of intent made in the presence of the recipient is deemed to be received when
the declarant may assume that the recipient has understood the declaration of intent
A declaration of intent made in the absence of the recipient is deemed to be received when
the declaration of intent has entered the recipients’ sphere of control AND it can be assumed under normal circumstances that the recipient has taken note of the declaration
SHORT: How does every contract come into being?
Contract is concluded by an offer and its acceptance
LONG: How does every contract come into being?
Contract is concluded by an offer and its acceptance. The offer must be complete in terms of content AND legally binding. The acceptance must be in good time
The contract offer must be such complete in terms of content that
the recipient can form the contract with his mere consent (“Yes, I agree.”)
When is a contract offer complete in terms of contract in the case of a purchase contract?
In the case of a purchase contract, the offer is complete in terms if it contains both the object of the purchase and the price of the purchase
When is there a complete offer in the case of a service contract, an employment contract or a contract to produce a work?
Here, an offer is already complete in terms of contract if it exclusively contains the work performance, the service or the work to be produced. If necessary, the amount of the remuneration can be derived from the law,
namely from Section 612 CC or
Section 632 CC
The required “intention to be legally bound” is lacking in cases where the declarer
- Merely offers the legally non-binding favour
- Does not make a binding offer, but invites the recipient of the declaration to make a legally binding contractual offer
- Expressly excludes the legally binding nature of the offer by means of an addiction
Whoever promises to take over an “mandate” for another person, establishes an obligation with the duty to carry out the assigned business in accordance with the agreement according to
Section 66 CC
In the case of the injury of one of these obligations and damage developing from it, the mandator receives against the mandatary a claim for compensation, according to
Section 280 Subsection 1 Sentence 1 CC
Examples of the invitations to make a binding contract offer include:
- The food and drinks offered on the menu in a restaurant
- The goods offered in the window of a shop
- Goods offered on the shelves of department stores or supermarkets
- The goods or services offered in print, radio or TV advertising
- The goods or services offered via the Internet
In business transactions, the legally binding nature of an offer is often excluded by certain “addition.” Examples of this are the additions:
- Non-commital
- Non-binding
The courts argue here with the recognizable interest of the Internet provider. The latter does not want to make a binding declaration with his Internet presence, because otherwise
he would have to pay damages for non-performance in all cases, where more customers want to purchase the goods than he can deliver
According to Section 146 CC, the binding effect of an offer expires not only if the offeree rejects the offer. The binding effect also ceases if the offer is not accepted in time by the offeree. With regard to the question when an offer expires due to the mere passage of time, the CC distinguishes between offers made to persons present and offers made to persons absent. When does the offer expire according to which provision in the first case, and when according to which provision in the second case? FIRST CASE:
According to Section 147 Subsection 1 Sentence 1 CC, the offer expires when the offer is not immediately accepted
According to section 146 CC, the binding effect of an offer expires not only if the offeree rejects the offer. The binding effect also ceases if the offer is not accepted in time by the offeree. With regard to the question when an offer expires due to the mere passage of time, the CC distinguishes between offers made to persons present and offers made to persons absent. When does the offer expire according to which provision in the first case, and when according to which provision in the second case?
SECOND CASE:
According to Section 147 Subsection 2 CC, the declarant is bound to his offer as long as he must expect the answer of the offer under ordinary circumstances
How can any offeror exclude from the outset the uncertainty associated with the imprecise provision of Section 147 Subsection 2 CC?
by fixing a time limit for the acceptance of his offer by day, and, if necessary, by hour and minute
