Term and Definition of Calculation Error
The Term Calculation Error in German civil law refers to a specific subtype of what is known as the declaration error under Section 119 (1) of the German Civil Code (BGB). A calculation error occurs when the person making the declaration makes a miscalculation as part of forming their statement, without the declaration itself being issued erroneously. The calculation error thus differs from other types of error by the specific connection between the declaration of intent and the calculation step.
Legal Classification and Delimitation
Distinction from Other Types of Error
In summary, there are various forms of error recognized under German law, in particular:
- Error as to Content (Section 119 (1) Alt. 1 BGB): Error concerning the meaning of a declaration.
- Error in Declaration (Section 119 (1) Alt. 2 BGB): Unconsciously making a false declaration.
- Error as to Attributes (Section 119 (2) BGB): Error concerning material characteristics of a thing or a person.
- Error as to Motive (generally irrelevant): Error during the formation of intention, not in the declaration itself.
The calculation error is conceptually related to the error in declaration, as here the declaration of intent is linked to a (mathematical) miscalculation.
Essential Characteristics of a Calculation Error
A calculation error typically occurs when:
- The declaring party makes a proper declaration,
- but the result of a mistaken calculation is included in the declaration,
- and the party is mistaken specifically about the result of the calculation (e.g., addition, multiplication, percentage calculation).
Typical examples include price quotations where, due to mistakes in calculation (for instance, with VAT, summing, or discounts), an error occurs.
Distinction from Calculation of Basis Error
Calculation errors are often confused with errors in calculation basis (Kalkulationsirrtum). Legally, a strict distinction must be made:
- Calculation Error pertains to a mechanical calculation mistake within the declaration of intent.
- Error in Calculation Basis (Kalkulationsirrtum) refers to a mistake in the internal (in-house) mental preliminary consideration, which is not expressed and thus generally remains irrelevant.
If the incorrect calculation result itself is directly reflected in the declaration (e.g., price quote), a calculation error may be assumed where appropriate.
Legal Consequences of a Calculation Error
Avoidance Pursuant to Section 119 BGB
A calculation error generally entitles a party to avoid the contract in accordance with Section 119 (1) BGB. This presupposes that, at the time of issuing the declaration of intent, the party was mistaken regarding an essential characteristic, which is recognized in cases of calculation mistakes.
Requirements for Avoidance
- Grounds for avoiding: Existence of a calculation error in the legal sense.
- Declaration of Avoidance: Avoidance must be declared without undue delay after the error is discovered, Section 121 (1) BGB.
- Causality: The calculation error must have been the cause for the declaration of intent.
Legal Consequence
If avoidance is effective, the party that avoided the contract is considered unbound from the beginning (§ 142 (1) BGB, nullity of the declaration of intent). However, under Section 122 BGB, the avoiding party may be liable for damages to the recipient of the declaration if the recipient relied on its validity.
Modification through Interpretation under Sections 133, 157 BGB
Calculation errors often manifest by showing that the figures are incorrect, but the intention is directed toward the correctly calculated result. If both the faulty result and the calculation basis are disclosed (for example, in a contract text), then an “interpretation solution” may be considered.
Here, interpretation taking into account good faith (§ 157 BGB) may result in the correctly calculated outcome becoming a part of the contract—meaning that avoidance is then unnecessary.
Typical Areas of Application in Civil Law
Calculation errors are particularly relevant in practice in the following areas:
- Purchase Agreements: Errors in adding individual purchase prices or calculating discounts.
- Contracts for Work and Services: Incorrect calculation of wages, material costs, or time estimates.
- Lease Agreements: Incorrect summing or calculation of ancillary and operating costs.
- Inheritance and Partnership Agreements: Incorrect calculation of shares or inheritance quotas.
In commercial law and contract drafting, proper handling of calculation errors is therefore regularly essential.
Case Law and Literature
The case law of the Federal Court of Justice (BGH) emphasizes that while a calculation error can provide grounds for avoidance, interpretation takes precedence if the declaration of intent discloses the calculation basis and the intent is aimed at the correct result (BGH NJW 1981, 2266; BGH NJW 1953, 660).
Specialist literature and commentary stress that it must always be assessed individually whether a calculation error entitling to avoidance under Section 119 (1) BGB is present, or an irrelevant calculation basis error.
Summary and Significance in Legal Practice
The calculation error represents an important application of the error in declaration in German contract law and can significantly affect both the validity and the content of contractual agreements. The subtle distinction from errors in calculation basis and the priority of interpretation are essential to determine the correct legal treatment and any rights of avoidance on a case-by-case basis.
Calculation errors highlight the importance of care in contract drafting and the use of figures and calculations in commercial transactions. Understanding the legal consequences helps to avoid legal disputes or to take appropriate action in case of an error.
Frequently Asked Questions
What are the legal consequences of a calculation error when contesting contracts?
A calculation error may, under Section 119 (1) BGB, entitle a party to contest a contract if the declaring party makes only an insignificant mistake in the calculation. However, case law distinguishes between an error as to content and an insignificant calculation error. If the calculation error is revealed during the declaration process, the declared and objectively discernible intent applies as a rule. Contesting is excluded if the error concerns only the basis for the declaration of intent, but not its content—so, generally, in cases of mere calculation basis errors (whether open or hidden) in price agreements and tenders.
When can the recipient of a declaration of intent recognize and react to a calculation error?
The recipient of a declaration of intent must, under the objective recipient’s perspective as per Sections 133, 157 BGB, check whether a calculation error exists. If the recipient recognizes the error or ought to recognize it (an obvious calculation mistake), they may not rely on the correctness of the calculation and must act in good faith accordingly. If the calculation error becomes obvious, they may demand rectification or correction upon conclusion of the contract. In the case of a hidden calculation error, however, the declaration remains binding until avoidance is declared.
Which deadlines must be observed when contesting on the basis of a calculation error?
In the case of a calculation error, avoidance must be declared without undue delay in accordance with Section 121 (1) BGB—that is, without culpable hesitation—after the error has been discovered. If the entitled party delays avoidance after becoming aware of the error, the contract can no longer be successfully contested. The deadline begins when the miscalculation is discovered and, according to Section 121 (2) BGB, ends at the latest ten years after issuing the declaration of intent.
How does the calculation error differ legally from an error in the calculation basis?
The core difference is that a calculation error—such as an obvious calculation mistake in a declaration—can be corrected after avoidance, whereas the error in the calculation basis (Kalkulationsirrtum) merely constitutes a motive error and remains outside the process of making the declaration. The latter generally does not entitle to avoidance, as it only concerns the basis of the declaration, not its immediate content. Only in exceptional cases, for example, where the calculation is disclosed and the error is apparent to both contracting parties, may adaptation of the contract or even avoidance exceptionally be possible.
What effects does a calculation error have on contract interpretation?
When interpreting a contract, it is crucial whether both parties based their agreement on the same facts and whether the calculation error was obvious or hidden. If the miscalculation was part of the business foundation assumed by both parties or is even apparent in the contract text, the contract can be interpreted or corrected from the perspective of a reasonable recipient. The actually intended content is decisive, provided the error was recognized at the time of contract conclusion and was not exploited to the disadvantage of a party. Otherwise, the content as declared initially applies.
What happens if a calculation error is discovered after the contract has been concluded?
If the error is discovered after the contract has been concluded, the affected party—if the requirements for avoidance are met—may avoid their declaration of intent pursuant to Section 119 (1) BGB. However, as stated above, this must be done without undue delay. If avoidance is valid, the contract is deemed void from the beginning under Section 142 (1) BGB, so any performances already rendered must be reversed under the rules on unjust enrichment (Sections 812 et seq. BGB).
Are there liability risks or claims for damages in the case of avoidance due to a calculation error?
If avoidance due to a calculation error is successful, the other party may demand compensation for reliance damages under Section 122 BGB. This relates to the loss suffered by the other party relying on the validity of the contested contract. However, compensation is limited to the negative interest—that is, the other party must not be left in a better position than if the contested contract had never existed. A further claim for damages exists only in the event of additional fault.
