Schuldrecht

Der Behandlungsvertrag

“…1014 Die Vorschriften im Bürgerlichen Gesetzbuch sind in der Regel abdingbar, was darauf beruht, dass die Vertragsfreiheit ein Grundelement des Zivilrechts darstellt. 1015 …”

Impossibility in Modern Private Law

“…§ 275 BGB, titled as "Exclusion of the duty of performance" reads as follows 15 : (1) A claim for performance is excluded to the extent that performance is impossible for the obligor or for any other person. (2) The obligor may refuse performance to the extent that performance requires expense and effort which, taking into account the subject matter of the obligation and the requirements of good faith, is grossly disproportionate to the interest in performance of the obligee. When it is determined what efforts may reasonably be required of the obligor, it must also be taken into account whether he is responsible for the obstacle to performance.…”

“…However, § 439 III BGB, which deals with defective goods, enables the seller's release from his obligation under lower standards than § 275 II BGB. The said provision reads as follows: "Without prejudice to section 275 (2) and (3), the seller may refuse to provide the kind of cure chosen by the buyer, if this cure is possible only at disproportionate expense. In this connection, account must be taken in particular, without limitation, of the value of the thing when free of defects, the importance of the defect and the question as to whether recourse could be had to the alternative kind of cure without substantial detriment to the buyer.…”

“…126 The provision reads as follows: (1) If circumstances which became the basis of a contract have significantly changed since the contract was entered into and if the parties would not have entered into the contract or would have entered into it with different contents if they had foreseen this change, adaptation of the contract may be demanded to the extent that, taking account of all the circumstances of the specific case, in particular the contractual or statutory distribution of risk, one of the parties cannot reasonably be expected to uphold the contract without alteration. (2) It is equivalent to a change of circumstances if material conceptions that have become the basis of the contract are found to be incorrect. (3) If adaptation of the contract is not possible or one party cannot reasonably be expected to accept it, the disadvantaged party may revoke the contract.…”

“…Although in the end, the lawmakers decided to keep impossibility as a category of non-performance, it deserves to be taken into account that impossibility was on the verge of abolishment. 2 The 2002 amendments, which are considered the most important reform of the BGB since its enactment, have dramatically changed German law. 4 Although BGB has not been completely rewritten, it has been subject to major changes as a result of the reform.…”