Concept and Principles of Contesting Declarations of Intent
Die Contesting Declarations of Intent plays a central role in German civil law when it comes to correcting or eliminating legal declarations which, due to a defect of intention or other errors, were not intended or are undesirable. The aim of contestation is to retroactively declare ineffective any declaration of intent that was made by mistake, deception, or under threat (§§ 119 ff. BGB). In this way, legal relationships can be corrected, contractual ties dissolved, and legal clarity restored.
Systematics and Legal Foundations
General Principles
Contestation is regulated in the German Civil Code (BGB) in §§ 119-124. It requires that a declaration of intent has been validly made, but that there is a ground for contestation and a proper notice of contestation within the statutory time limits.
Function of Contestation
Through contestation, the affected legal transaction is regarded as void from the outset (ex tunc effect, retroactively to the time of making the declaration of intent) (§ 142 para. 1 BGB). This distinguishes contestation from a mere termination of the contract for the future (ex nunc).
Grounds for Contestation
The grounds for contestation are explicitly regulated in §§ 119 to 123 BGB. They can be divided into the following main groups:
1. Mistake (§§ 119, 120 BGB)
a) Mistake as to the content (§ 119 para. 1 alt. 1 BGB)
A mistake as to content exists if the declarant was mistaken about the meaning or scope of their declaration (Example: confusion of terms in an order).
b) Mistake in declaration (§ 119 para. 1 alt. 2 BGB)
Here, the declarant unintentionally expresses a different statement than intended (e.g., slip of the tongue, miswriting, typing error).
c) Mistake as to qualities (§ 119 para. 2 BGB)
Concerns essential characteristics of a person or object which are significant for the legal transaction (e.g., the authenticity of an artwork).
d) Transmission error (§ 120 BGB)
A transmission error arises when a declaration is incorrectly transmitted by a third person.
2. Unlawful Threat (§ 123 para. 1 alt. 2 BGB)
If a declaration of intent is made under the influence of an unlawful threat, it can be contested. Here, the coercive situation caused by the threat is decisive.
3. Deception (§ 123 para. 1 alt. 1 BGB)
If the declarant was induced to make the declaration by fraudulent deception, they can contest it. The deception must have been causal for the declaration.
Time Limits for Contestation
The exercise of the right to contest is subject to time limits (§ 121, § 124 BGB):
- For mistakes and transmission errors: The contestation must be made without undue delay (immediately, without culpable hesitation) upon becoming aware of the grounds for contestation (§ 121 para. 1 BGB).
- For fraudulent deception or unlawful threat: Here, the period is one year, beginning when the entitled person becomes aware of the deception or threat or when it ceases to exist (§ 124 paras. 1, 2 BGB).
Notice of Contestation
Contestation takes place by declaration to the contestation opponent (§ 143 BGB). The declaration must clearly state that the contesting party does not wish the legal transaction to be valid. There are generally no formal requirements: an oral, written or implied declaration is sufficient.
Legal Consequences of Contestation
The main effect derives from § 142 para. 1 BGB: The contested legal transaction is to be regarded as void from the beginning. Any performances already exchanged must be reversed under the rules of unjust enrichment (§§ 812 ff. BGB).
Compensation and Damages
- Exception: Liability for Damages: The contesting party may be liable for reliance damages under § 122 BGB if the contestation is based on a mistake under § 119 or § 120 BGB.
- No liability in cases of deception/threat: If the contestation is due to deception or threat, there is no obligation to pay damages by the contesting party (§ 123 BGB).
Limitations and Special Features
Principle of Specificity
The contestation must relate to a specific declaration of intent or a delineable part thereof. Blanket contestations are not permitted.
Exclusion of Contestation
- Effect of Confirmation: If the recipient of the declaration is aware of the mistake, contestation is excluded (§ 144 BGB).
- Forfeiture: If there is a long period of inactivity despite knowledge, the right to contest may be forfeited.
Special Cases
Certain declarations of intent cannot, or can only be contested under limited circumstances, for example wills and employment dismissals. In addition, special rules apply in certain areas of law such as commercial law.
Significance and Practical Relevance
Contesting declarations of intent is a key instrument for protecting legal transactions and the interests of the individual declaring party. Its purpose is to correct mistaken or coerced declarations and to ensure a balance between contractual obligations and individual freedom of will. Contestation is especially significant in contract conclusions in sales, tenancy, and labor law. It is essential for achieving an equitable solution in cases of defective declarations of intent and contributes to legal certainty.
Summary
Die Contesting Declarations of Intent makes it possible, under the statutory requirements and deadlines, to eliminate declarations of intent retroactively. Crucial factors are the grounds for contestation (mistake, deception, threat) and their verifiability, as well as compliance with the statutory deadlines and formal requirements. Contestation guarantees flexibility in legal transactions and protects both individuals and the general legal community from the consequences of unwanted or erroneous legal acts.
Frequently Asked Questions
How is a declaration of intent contested under German law?
A declaration of intent is contested according to §§ 119 ff. BGB by issuing a so-called notice of contestation to the opponent of the contestation. The notice of contestation is a declaration of intent requiring receipt, i.e. it must be received by the opponent of the contestation in order to be effective. It is sufficient if the declaration makes it clear enough that the declarant does not wish the legal transaction to be valid; a specific wording or the use of the term ‘contestation’ is not mandatory. The declaration must indicate the mistake or ground for contestation, whereby the concrete circumstances must be assessed on a case-by-case basis. The notice of contestation can basically be made without form, as long as there is no prescribed form for the legal transaction itself. Once the notice of contestation has been received, the contested legal transaction is regarded as void from the outset pursuant to § 142 para. 1 BGB, provided the contestation is valid.
What deadlines must be observed when contesting?
Different deadlines apply depending on the ground for contestation. In the case of a mistake as to content or declaration (§ 119 BGB) and a mistake as to qualities (§ 119 para. 2 BGB), the contestation must be declared ‘without undue delay’, i.e. without culpable hesitation (§ 121 BGB). As a rule, this is regarded as a period of a few days up to a maximum of two weeks after becoming aware of the grounds for contestation. In cases of fraudulent deception or unlawful threat (§ 123 BGB), the contestation period is one year, starting with the discovery of the deception or with the end of the coercive situation. If the notice of contestation is not made in due time, the entitled person loses the right of contestation. If the contested legal transaction has already been executed, restitution claims under §§ 812 ff. BGB may arise under certain circumstances.
Who is entitled to contest, and to whom must the contestation be declared?
The person entitled to contest is generally the one who made the declaration of intent and can rely on a mistake, deception or threat. In the case of representation, the represented principal may also be entitled to contest if the representative was subject to a ground for contestation at the time of the declaration. The contestation is generally to be declared to the opponent, i.e. the contractual partner of the legal transaction to be contested. If the opponent is deceased, the declaration must be made to his heirs. If the declaration of intent becomes effective with an absent party (§ 130 BGB), the contestation must also be made to this absent party or their representative.
What are the legal consequences of a valid contestation?
Through a valid contestation, the contested legal transaction is regarded as void from the outset (ex tunc) in accordance with § 142 para. 1 BGB. This means that the transaction is treated as if it never had any legal effect. If performances have already been made under the contested transaction, the provisions on restitution under the law of unjust enrichment (§§ 812 ff. BGB) apply. Anyone who has received something on the basis of the void transaction must return what has been received. If that is not possible (e.g. due to use or consumption), compensation for value must be provided. It should be noted that, in the case of contestation under § 119 or § 120 BGB, claims for damages under § 122 BGB may arise, i.e. the contesting party may be obliged to compensate the opponent for the reliance damage.
What are the most common grounds for contestation in connection with declarations of intent?
The most common grounds for contestation in German civil law are mistake as to content (§ 119 para. 1 alt. 1 BGB), mistake in declaration (§ 119 para. 1 alt. 2 BGB), mistake as to qualities (§ 119 para. 2 BGB), transmission error (§ 120 BGB), as well as contestation due to fraudulent deception or unlawful threat (§ 123 BGB). A mistake as to content arises if the declarant is mistaken about the meaning of their declaration; in the case of a mistake in declaration, they are mistaken about the intended and actually declared meaning, for example, due to a slip of the tongue or miswriting. A mistake as to qualities relates to essential characteristics of a person or object, for example, when buying a car regarding its accident-free status. A transmission error may arise if a declaration is incorrectly transmitted by a messenger. Deception and threat lead to contestation rights if the declaration of intent was made under such influence.
Are there exclusion grounds or limitations for contestation?
Certain exclusion grounds prevent successful contestation. According to § 144 BGB, contestation is excluded if the entitled person has expressly or impliedly confirmed the legal transaction after the ground for contestation has ceased to exist (so-called ratification of the transaction). Furthermore, strict deadlines must be observed: contestation not declared in due time is precluded. In addition, according to § 242 BGB (good faith), contestation is excluded if it is exercised in bad faith, for example after a long period and if the contestation opponent has already relied on the validity of the transaction. Finally, the right of contestation can also be excluded by special agreement, although this does not apply under the prerequisites of § 119 BGB in cases of deception or threat.
Can contestation also be effective in unilateral legal transactions?
Contestation is possible not only for contracts, but also for unilateral legal transactions, in particular for declarations of intent requiring receipt, such as terminations, withdrawals or offers. Here, too, the contestation must generally be declared to the recipient of the declaration. For declarations of intent not requiring receipt (e.g. wills), contestation is also possible if there is a legal ground for contestation, although with modified notice and deadlines, for example as regulated in §§ 2078 ff. BGB in the case of wills. As a result, even unilateral declarations of intent can be rendered void from the outset by effective contestation.
