Definition and Nature of the Draufgabe
The “Draufgabe” is a term originating from legal language, playing a specific role especially in the context of contract and obligations law. In German law, the Draufgabe refers to a voluntarily provided additional performance granted alongside the actual primary obligation. The Draufgabe frequently appears in connection with hand money (Arrha) as well as in purchase, real estate, or lease contracts. This additional performance can consist of money or other assets of value and is primarily intended as a sign of contractual fidelity or to ensure future contract fulfillment.
The Draufgabe in the Law of Obligations
Significance and Purpose of the Draufgabe
Generally, a Draufgabe serves to strengthen the mutual trust of the contracting parties and to emphasize the seriousness of the transaction. By providing the additional benefit, one party regularly declares its firm intention to adhere to the contract. At the same time, the Draufgabe can serve as a security measure or penalty clause, particularly if, in the case of non-fulfillment of the main contract, it may be retained or reclaimed.
Distinction from Similar Legal Concepts
It is important to distinguish the Draufgabe from related terms:
- Arrha (Hand money): The term Arrha refers to hand money given as a sign of the conclusion of a contract. Draufgabe and Arrha are sometimes used synonymously, but differ particularly in their legal consequences in the event of withdrawal from the contract.
- Down payment and advance payment: A down payment constitutes a partial payment on the main obligation, whereas the Draufgabe is an additional benefit—not necessarily to be set against the main obligation.
- Contractual penalty: In individual cases, the Draufgabe may be structured as a contractual penalty; however, this is not necessarily the case.
Legal Provisions Concerning the Draufgabe
Civil Law Principles
There is no explicit law in German civil law comprehensively regulating the Draufgabe. In practice, reference is therefore made to general principles of the law of obligations, as well as to judicial interpretation and customary rules. Of particular note is § 336 BGB, which governs the legal consequences of a so-called Arrha (hand money, which also includes the Draufgabe) in the event that both parties withdraw:
§ 336 BGB Withdrawal and Arrha:
“If, at the time of concluding the contract, one contracting party gives the other hand money, it can, in cases of doubt, be assumed that in the event of withdrawal, the recipient is entitled to retain the hand money, and the giver, in the event of his own withdrawal, is obliged to pay double the amount, unless another intention is evident.”
This exemplary rule can be applied to the Draufgabe by analogy, provided the parties have not agreed otherwise.
Requirements and Formalities
A Draufgabe is generally possible without formal requirement, unless the underlying transaction is subject to special formal requirements (such as notarization for real estate transactions pursuant to § 311b BGB). The agreement regarding a Draufgabe should be explicitly stated in the contract to avoid later disputes about its legal nature and reversal.
Legal Consequences of the Draufgabe
The legal consequences arising from a Draufgabe depend largely on the structure of the contract and the intention of the parties. Typical cases are:
- Retention of the Draufgabe: If, through no fault of the receiving party, the contract is not concluded or is cancelled, the Draufgabe is generally to be returned.
- Forfeiture of the Draufgabe: In the case of unjustified withdrawal or fault on the part of the giver, the Draufgabe can remain with the recipient as lump-sum compensation for damages.
- Double Repayment: In the case of unilateral withdrawal, a double repayment obligation may be stipulated under special circumstances, as exemplified by § 336 BGB.
The precise legal consequence is to be determined by interpreting the individual case and the agreement made.
Practical Areas of Application for Draufgabe
Real Estate and Property Transactions
In the area of real estate transactions, the Draufgabe often serves as a means to secure the buyer or seller, ensuring contractual commitment until final notarization.
Purchase Agreements and Business Acquisitions
In commercial transactions, a Draufgabe can be agreed upon as a declaration of firm intent to execute a major purchase or business transfer contract.
Lease and Tenancy Agreements
The Draufgabe is particularly used in high-value or long-term lease and tenancy agreements to reinforce the binding effect until final conclusion of the contract.
Special Features and Disputes Regarding the Draufgabe
Reclaims and Reversal
If a transaction does not materialize or is reversed, the question often arises as to whether and in what amount the Draufgabe can be reclaimed. In such cases, the parties must, in case of doubt, examine what agreement was reached in the individual case and whether an interpretation allows the Draufgabe to be retained or refunded.
Tax and Social Security Aspects
The question of whether and to what extent tax or social security obligations apply to the Draufgabe depends on the individual case. As a rule, the Draufgabe constitutes an asset-based benefit which, depending on its structuring, may represent a taxable grant.
Literature and Legal Sources
For more in-depth information, it is advisable to consult commentaries on the German Civil Code (BGB), especially § 336 BGB, as well as commercial law literature on hand money and relevant case law on Draufgabe and Arrha.
Summary:
The Draufgabe constitutes a performance-related peculiarity in German contract law, which is regularly used as a sign of contractual fidelity or as security for a transaction. Its structure and resulting legal consequences primarily depend on the individual agreement between the parties and legal requirements. Careful contractual regulation can prevent subsequent disputes regarding the retention and treatment of the Draufgabe.
Frequently Asked Questions
Is a Draufgabe legally binding if it was only given orally?
An oral promise of a Draufgabe is generally legally valid, provided that no form requirement such as written form or notarization applies to the underlying transaction. According to German civil law (§ 311 para. 1 BGB), the content of a contract—including supplementary agreements such as a Draufgabe—can also be made orally. In practice, problems of proof may arise if the existence or exact amount of the Draufgabe is later disputed, as under § 286 ZPO the burden of proof lies with the party relying on the Draufgabe. However, if the main agreement was made in writing or is subject to certain formal requirements, it is always advisable to include the agreed Draufgabe in this form as well to avoid uncertainties.
What are the legal consequences if a Draufgabe is subsequently refused?
If a party refuses to provide the agreed Draufgabe, this usually constitutes a disruption of performance within the meaning of a breach of duty under §§ 280 ff. BGB. The beneficiary can insist on fulfillment of the Draufgabe or, if applicable, on compensation for damages if the agreement is valid. If the Draufgabe is an obligatory part of the contract, it can, if necessary, be enforced in court. If the Draufgabe was merely promised as a voluntary extra without consideration, it must be examined whether a legal obligation has arisen at all, or whether the promise is merely to be qualified as a favor.
Can a Draufgabe be affected by the reversal of a transaction?
If a contract is reversed—for example, after withdrawal or rescission—the Draufgabe provided must generally also be returned (§ 346 BGB). Legally, the Draufgabe shares the fate of the main transaction unless it is expressly to be regarded as an independent gift. If it is part of the synallagma (“do ut des,” I give so that you give), it must be returned together with the main performance received; otherwise, unjust enrichment may arise (§ 812 BGB). Only in the case of gratuitous Draufgaben without connection to the primary performance may a separate regulation be necessary.
Are there tax implications with Draufgaben?
Draufgaben may be subject to VAT if they are provided as part of an exchange of services and thus constitute consideration (§ 3 para. 1 UStG). For example, if a Draufgabe is provided when purchasing a product, the tax base for VAT is generally increased. From a tax perspective, it is crucial whether the Draufgabe is considered part of the owed (main) performance or as an independent, gratuitous grant. In the case of pure promotional gifts, flat-rate regulations (§ 37b EStG) or de minimis thresholds may also apply. In case of doubt, a detailed case-by-case assessment by a tax advisor is recommended.
Is the Draufgabe also relevant to consumer protection?
Draufgaben are particularly relevant in consumer law (B2C), for example in promotional campaigns or free additions to purchases. According to § 3 para. 3 UWG, a ban on tie-in transactions applies only if market conduct rules are violated or deception occurs. The consumer is generally entitled to the contractually promised Draufgabe. If Draufgaben are provided as part of a distance contract, they are also subject to the consumer’s right of withdrawal (§§ 355, 356 BGB), so that in the event of withdrawal, they must also be returned.
Can a Draufgabe be revoked or terminated separately from the main transaction?
A separate termination or revocation solely concerning the Draufgabe is generally not possible if it is legally agreed as an accessory part of the main contract. The Draufgabe is then accessory, i.e., it follows the legal fate of the main contract. Only where there is an expressly independent gift agreement could deviating rules apply (such as revocation of a gift under § 530 BGB).
Are Draufgaben subject to special form requirements?
Draufgaben as a side agreement or addition to the main contract are generally subject to the same formal requirements as the main contract itself. If the main contract is subject to special form, such as in property purchases (notarization under § 311b BGB), the Draufgabe must likewise be agreed in the same form, otherwise it is void (§ 125 BGB). Otherwise, there is a risk that the Draufgabe cannot be enforced due to a lack of formal validity. For transactions where no formal requirement applies, a tacit (implied) agreement is also sufficient regarding the Draufgabe.
