Book1 Chapter03 Title02

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK I. General Principles.

Chapter III. Juristic Acts.

Title II. Declaration of Intention.

Section 116.

• A declaration of intention is not void by reason of the fact that the declarant has made a secret reservation of not willing the matter declared. The declaration is void if made to a person who is aware of the reservation.

Section 117.

• [I] If a declaration of intention required to be made to a person is with his connivance made only in pretence, it is void.
• [II] If another juristic act is concealed under a pretended transaction, the provisions applicable to concealed juristic acts apply.

Section 118.

• A declaration of intention not seriously intended, which is made in the expectation that it will be understood not to be seriously intended, is void.

Section 119.

• [I] A person who, when making a declaration of intention, was under a mistake as to its purport, or did not intend to make a declaration of that purport at all, may avoid the declaration if it is to be supposed that he would not have made it with knowledge of the state of affairs and with intelligent appreciation of the case.
• [II] A mistake concerning any characteristics of the person or thing which are regarded in ordinary dealings as essential is also deemed to be a mistake concerning the purport of the declaration.

Section 120.

• A declaration of intention which has been incorrectly transmitted by the person or institution employed for its transmission may be avoided under the same conditions as a declaration of intention made under mistake [under] 119.

Section 121.

• [I] The avoidance must be made, in the cases provided for by 119, 120, without delay (i.e., without culpable delay), after the person entitled to avoid has obtained knowledge of the grounds for avoidance. An avoidance as against a person who is not present is deemed to have been effected in due time if the avoidance has been forwarded without delay.
• [II] The right of avoidance is barred if thirty years have elapsed since the making of the declaration of intention.

Section 122.

• [I] If a declaration of intention is void under 118, or avoided under 119, 120, the declarant shall, if the declaration was required to be made to another, compensate him or any third party for any damage which the other or the third party has sustained by relying upon the validity of the declaration; not, however, beyond the value of the interest which the other or the third party has in the validity of the declaration.
• [II] The duty to make compensation does not arise if the person injured knew of the ground on which the declaration was void or voidable, or would have known of it but for his own negligence (i.e., ought to have known it).

Section 123.

• [I] A person who has been induced to make a declaration of intention by fraud or unlawfully by threats may avoid the declaration.
• [II] If a third party was guilty of the fraud, a declaration which was required to be made to another may be avoided only if the latter knew or ought to have known of the fraud. In so far as another person than the one to whom the declaration was required to be made has acquired a right directly through the declaration, the declaration may be avoided as against him if he knew or ought to have known of the fraud.

Section 124.

• [I] The avoidance of a declaration of intention voidable under 123 may take place only within the period of one year.
• [II] The period begins to run, in the case of fraud, from the moment at which the person entitled to avoid discovers the fraud; in the case of threats, from the moment at which the coercion ceases. The provisions of 203, par. 2, and of 206, 207, applicable to prescription, apply mutatis mutandis to the running of this period.
• [III] The right of avoidance is barred if thirty years have elapsed since the making of the declaration of intention.

Section 125.

• A juristic act which is not in the form prescribed by law is void. If it is not in the form prescribed by juristic act, it is void in case of doubt.

Section 126.

• [I] If writing is prescribed by law the document must be signed by the maker with his own hand by subscription of his name, or by mark certified by a Court or notary.
• [II] In the case of a contract the signatures of the parties must be attached to the same document. If several identical copies of the contract are drawn up, it is sufficient if each party signs the copy intended for the other party.
• [III] Judicial or notarial authentication may be substituted for writing.

Section 127.

• The provisions of 126 apply also, in case of doubt, to writing prescribed by juristic act. It is sufficient, however, for compliance with the form, unless a contrary intention is to be presumed, if it is by telegraphic transmission and, in the case of a contract, by exchange of letters; if such a form is selected, authentication in accordance with 126 may be subsequently required.

Section 128.

• If judicial or notarial authentication of a contract is prescribed by law, it is sufficient if first the offer and later the acceptance of the offer be authenticated by a Court or notary.

Section 129.

• [I] If it is prescribed by law that a declaration shall be publicly certified, the declaration must be drawn up in writing, and the signature of the declarant be certified by the competent authority, or a competent official, or notary. If the declaration is subscribed by the maker with his mark, the certification of the mark prescribed in 126, par. 1, is necessary and sufficient.
• [II] Judicial or notarial authentication of the declaration may be substituted for the public certification.

Section 130.

• [I] A declaration of intention required to be made to another, if it is made in his absence, becomes effective at the moment when it reaches him. It does not become effective if a revocation reaches him previously or simultaneously.
• [II] The effectiveness of the declaration is not affected by the fact that the declarant die or become incapable of disposing after making it.
• [III] These provisions apply even if the declaration of intention is required to be made to a public authority.

Section 131.

• [I] If a declaration of intention is made to a person incapable of disposing, it does not become effective before it reaches his statutory agent.
• [II] The same rule applies if the declaration of intention is made to a person limited in disposing capacity. If, however, the declaration merely brings a legal advantage to the person limited in disposing capacity, or if the statutory agent has given his approval, the declaration becomes effective at the moment when it reaches the person limited in disposing capacity.

Section 132.

• [I] A declaration of intention is also deemed to have become effective if it has been delivered through the instrumentality of an executive officer of a Court. The delivery is made according to the provisions of the Code of Civil Procedure.
• [II] If the declarant is in ignorance, not due to negligence, of the identity of the person to whom the declaration is required to be made, or if the residence of this person is unknown, the delivery may be effected according to the provisions of the Code of Civil Procedure relating to the public service of a citation. In the former case the District Court is competent to authorise the citation in whose district the declarant has his domicile, or, if he has no domestic domicile, his residence; in the latter case the District Court in whose district the person to whom delivery is required to be made last had his domicile, or, if he had no domestic domicile, last had his residence.

Section 133.

• In the interpretation of a declaration of intention the true intention is to be sought without regard to the literal meaning of the expression.

Section 134.

• A juristic act which is contrary to a statutory prohibition is void, unless a contrary intention appears from the statute.

Section 135.

• [I] If the disposition of an object is contrary to a statutory prohibition against alienation which aims only at the protection of particular persons, it is inoperative only as to these persons. A disposition effected by means of compulsory execution or distraint is equivalent to a contractual disposition.
• [II] The provisions in favour of those who derive rights from a person without title apply mutatis mutandis.

Section 136.

• A prohibition against alienation which is issued by a Court or by any other competent authority is equivalent to a statutory prohibition against alienation of the kind specified in 135.

Section 137.

• The right to dispose of an alienable right may not be excluded or limited by juristic act. The validity of an obligation not to dispose of such a right is not affected by this provision.

Section 138.

• [I] A juristic act which is contra bonos mores is void.
• [II] A. juristic act is also void whereby a person profiting by the difficulties, indiscretion or inexperience of another, causes to be promised or granted to himself or to a third party for a consideration, pecuniary advantages which exceed the value of the consideration to such an extent that, having regard to the circumstances, the disproportion is obvious.

Section 139.

• If part of a juristic act is void the whole juristic act is void, unless it is to be presumed that it would equally have been entered into if the void part had been omitted.

Section 140.

• If a void juristic act satisfies the requirements of a different juristic act, the former is valid in right of the latter, if it is to be presumed that its validity would have been intended by the parties on knowing of the invalidity.

Section 141.

• [I] If a void juristic act is confirmed by the person who entered into it, the confirmation is deemed to be a renewed undertaking.
• [II] If a void contract is confirmed by the parties, they are mutually bound, in case of doubt, to do what they would have been bound to do if the contract had been valid ad initio.

Section 142.

• [I] If a voidable juristic act (z) is avoided it is deemed to have been void ab initio.
• [II] If a person knew or ought to have known of the voidability, he is deemed, if the act is avoided, to have known that the juristic act was void.

Section 143.

• [I] The avoidance is effected by declaration to the party subject to avoidance.
• [II] The party subject to avoidance is, in the case of a contract, the other party ; in the case provided for by 123, par. 2, sentence 2, the person who has acquired a right directly through the contract.
• [III] In the case of a unilateral juristic act required to be entered into with another person, that other person is the party subject to avoidance. The same rule applies in the case of a juristic act required to be entered into with another person or with a public authority, even if the juristic act has been entered into with the authority.
• [IV] In the case of a unilateral juristic act of any other kind, the person who has acquired a legal advantage directly founded upon the juristic act is the party subject to avoidance. The avoidance may, however, if the declaration of intention was required to be made to a public authority, be effected by a declaration to the authority; the authority should communicate the avoidance to those persons who have been directly affected by the juristic act.

Section 144.

• [I] If a voidable juristic act is confirmed by the person entitled to avoid, it ceases to be voidable.
• [II] The confirmation need not be in the form prescribed for the juristic act.