Book2 Chapter01 Title01

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 II. Law of Obligations.

Chapter I. Scope of Obligations.

Title I. Obligation of Performance.

Section 241.

• By virtue of an obligation the creditor is entitled to claim performance from the debtor. The performance may consist in a forbearance.

Section 242.

• The debtor is bound to effect the performance according to the requirements of good faith, ordinary usage being taken into consideration.

Section 243.

• [I] A person who owes a thing designated only by species shall deliver a thing of average kind and quality.
• [II] If the debtor has done everything required on his part for the delivery of such a thing, his obligation is limited to the thing intended to be delivered.

Section 244.

• [I] If a money debt expressed in a foreign currency is payable within the Empire, payment may be made in the currency of the Empire, unless payment in the foreign currency is expressly stipulated for.
• [II] The commutation is made according to the rate of exchange current in the place of payment at the time of payment.

Section 245.

• If a money debt is payable in a specific kind of money which is no longer current at the time of payment, the payment shall be made as if the kind of money were not specified.

Section 246.

• If by law or juristic act a debt is to bear interest, four per cent. per annum shall be paid, unless some other rate is specified.

Section 247.

• If a higher rate of interest than six per cent. per annum is agreed upon, the debtor may, after the expiration of six months, give notice of payment of the principal, six months' notice being required. The right of payment on notice may not be excluded or limited by contract. These provisions do not apply to obligations to bearer.

Section 248.

• [I] An agreement made in advance that interest due shall again bear interest is void.
• [II] Savings banks, credit institutions and bankers may agree in advance that interest on deposits not drawn shall be considered as a new interest-bearing deposit. Credit institutions which have been authorised to issue interest-bearing obligations to bearer for the amount of the loans made by them, may cause to be promised to them in advance on such loans payment of interest on arrears of interest.

Section 249.

• A person who is bound to make compensation shall bring about the condition which would exist if the circumstance making him liable to compensate had not occurred. If compensation is required to be made for injury to a person or damage to a thing, the creditor may demand, instead of restitution in kind, the sum of money necessary to effect such restitution.

Section 250.

• The creditor may fix a reasonable period for the restitution in kind by the person liable to compensate with a declaration that he will refuse to accept restitution after the expiration of the period. After the expiration of the period the creditor may demand the compensation in money if the restitution is not effected in due time; the claim for restitution is barred.

Section 251.

• [I] In so far as restitution in kind is impossible or is insufficient to compensate the creditor, the person liable shall compensate him in money.
• [II] The person liable may compensate the creditor in money if restitution in kind is possible only through disproportionate outlay.

Section 252.

• The compensation required to be made includes also lost profits. Profit is deemed to have been lost which could have been expected with probability according to the ordinary course of things or according to the particular circumstances, e.g., according to the preparations and provisions made.

Section 253.

• For an injury which is not an injury to property compensation in money may be demanded only in the cases specified by law.

Section 254.

• [I] If any fault of the injured party has contributed in causing the injury, the obligation to compensate the injured party and the extent of the compensation to be made depends upon the circumstances, especially upon how far the injury has been caused chiefly by the one or the other party.
• [II] This applies also even if the fault of the injured party consisted only in an omission to call the attention of the debtor to the danger of an unusually serious injury which the debtor neither knew nor ought to have known, or in an omission to avert or mitigate the injury. The provision of 278 applies mutatis mutandis.

Section 255.

• A person who is required to make compensation for the loss of a thing or of a right is bound to make compensation only upon assignment to him of the claims which belong to the person entitled to compensation by virtue of his ownership of the thing or by virtue of his right as against third parties.

Section 256.

• A person who is bound to reimburse another for outlay shall pay interest from the time of the outlay on the amount expended, or if other objects than money have been used, on the amount to be paid as compensation for their value. If any outlay has been incurred upon an object which is to be delivered to the person bound to make reimbursement, interest shall not be paid for the time during which the person entitled to reimbursement receives the emoluments or the fruits of the object without making compensation.

Section 257.

• A person who is entitled to demand reimbursement of outlay which he incurs for a specific purpose may, if he has incurred an obligation for such purpose, demand relief from the obligation. If the obligation is not yet due, the person bound to make reimbursement may give him security instead of relieving him.

Section 258.

• A person who is entitled to remove an attachment from a thing which he is required to deliver to another shall, in case of the removal, put the thing in its former condition at his own expense. If the other party acquires possession of the thing he is bound to permit the removal of the attachment; he may refuse permission until security is given to him for the damage involved in the removal.

Section 259.

• [I] A person who is bound to render an account of his management of an affair involving receipts or disbursements shall furnish the person entitled to it with an account containing a systematic statement of the receipts or disbursements, and shall, so far as it is customary to give vouchers, submit vouchers.
• [II] If there is reason to suspect that the statements contained in the account relating to the receipts have not been made with the necessary amount of care, he shall, on demand, swear an oath of disclosure to the effect:
• That he, according to the best of his knowledge, has stated the receipts as completely as he was in a position to do.
• [III] In matters of trivial importance the obligation to swear such oath of disclosure does not exist.

Section 260.

• [I] A person who is bound to deliver an aggregate of objects or to give a statement of the contents of such an aggregate shall submit to the person entitled to it an inventory of the contents.
• [II] If there is reason to suspect that the inventory has not been drawn up with the necessary amount of care, he shall on demand swear an oath of disclosure to the effect:
• That he, according to the best of his knowledge, has stated the contents as completely as he was in a position to do.
• [III] The provision of 259, par. 3, applies.

Section 261.

• [I] The oath of disclosure, unless it is required to be sworn before the Court in which process is pending, shall be sworn before the District Court of the place in which the obligation of giving account or submitting the inventory is required to be fulfilled. If the person who is under such obligation has his domicile or residence within the Empire, the oath of disclosure may be sworn before the District Court of the place of his domicile or residence.
• [II] The Court may order a modification of the form of the oath corresponding to the circumstances.
• [III] The costs of swearing the oath shall be borne by the person who requires the oath to be sworn.

Section 262.

• If several acts of performance are due in such a manner that only one of them is required to be done, the right to elect belongs to the debtor in case of doubt.

Section 263.

• [I] The election is made by declaration to the other party.
• [II] The performance elected is deemed to be the only one due ab initio.

Section 264.

• If the debtor entitled to elect does not make the election before the levy of compulsory execution, the creditor may, at his election, levy execution on any one of the acts of performance; the debtor may, nevertheless, relieve himself from his obligation, so long as the creditor has not received the elected performance wholly or in part, by doing any one of the other acts of performance.
• [II] If the creditor entitled to elect is in default, the debtor may demand the creditor to make an election within a fixed reasonable period of time. After the expiration of the period the right to elect passes to the debtor if the creditor does not make his election in due time.

Section 265.

• If one of the acts of performance is impossible ad initio, or if it subsequently becomes impossible, the obligation is limited to the other acts of performance. This limitation does not arise if the performance becomes impossible in consequence of a circumstance for which the party not entitled to elect is responsible.

Section 266.

• A debtor is not entitled to perform in part.

Section 267.

• [I] If a debtor does not have to perform in person, a third party may effect the performance. The approval of the debtor is not necessary.
• [II] The creditor may decline the performance if the debtor objects to it.

Section 268.

• [I] If the creditor levies compulsory execution upon an object belonging to the debtor, any person who through the execution incurs danger of losing a right in the object is entitled to satisfy the creditor. The same right belongs to the possessor of a thing if he incurs danger of losing possession through the execution.
• [II] The satisfaction may also be made by lodgment or by set-off.
• [III] If a third party satisfies the creditor the claim is transferred to him. The transfer may not be enforced to the detriment of the creditor.

Section 269.

• [I] If a place for performance is neither fixed nor to be inferred from the circumstances, e.g., from the nature of the obligation, performance shall be effected in the place where the debtor had his domicile at the time the obligation arose.
• [II] If the obligation arose in the conduct of the debtor's industrial operations, and if the debtor's industry is located in another place, such place is substituted for the domicile.
• [III] It is not to be inferred from the mere circumstance that the debtor has assumed the expense of transmittal, that the place to which transmittal is required to be made is the place of performance.

Section 270.

• [I] In case of doubt the debtor shall remit money at his own risk and expense to the creditor at the latter's domicile.
• [II] If the claim arose in the conduct of the creditor's industrial operations, and if the creditor's industry is located in another place, such place is substituted for the domicile.
• [III] If, in consequence of a change of the creditor's domicile or the location of his industry occurring after the obligation arose, the cost or the risk of remitting is increased, the creditor shall bear the additional cost in the former case and the risk in the latter case.
• [IV] The provisions relating to the place of performance remain unaffected.

Section 271.

• [I] If a time for performance is neither fixed nor to be inferred from the circumstances, the creditor may demand the performance forthwith, and the debtor may perform his part forthwith.
• [II] If a time is fixed it is to be presumed, in case of doubt, that the creditor may not demand the performance before that time; the debtor, however, may perform earlier.

Section 272.

• If the debtor pays before maturity a debt not bearing interest he is not entitled to any reduction on account of interim interest.

Section 273.

• [I] If the debtor has a matured claim against the creditor arising from the same legal relation upon which his own obligation is based, he may, unless a contrary intention appears from the obligation, refuse to effect the performance due from him until the performance due to him is effected (i.e., a right of lien).
• [II] A person who is bound to hand over an object has the same right, if he has a matured claim on account of outlay incurred on the object, or on account of any injury caused to him by it, unless he has acquired the object by a wilful unlawful act.
• [III] The creditor may avert the exercise of the right of lien by giving security. The giving of security by sureties is not permitted.

Section 274.

• [I] As against suit by the creditor the enforcement of the right of lien has only the effect that the debtor is adjudged to perform on receipt of the performance due to him (i.e., contemporaneous performance).
• [II] By virtue of such a judgment the creditor may pursue his claim by means of compulsory execution without effecting the performance due from him if the debtor is in default of acceptance.

Section 275.

• [I] The debtor is relieved from his obligation to perform if the performance becomes impossible in consequence of a circumstance for which he is not responsible occurring after the creation of the obligation.
• [II] If the debtor, after the creation of the obligation, becomes unable to perform, it is equivalent to a circumstance rendering the performance impossible.

Section 276.

• [I] A debtor is responsible, unless it is otherwise provided, for wilful default and negligence. A person who does not exercise ordinary care acts negligently. The provisions of 827, 828 apply.
• [II] A debtor may not be released beforehand from responsibility for wilful default.

Section 277.

• A person who is answerable only for such care as he is accustomed to exercise in his own affairs (d) is not relieved from responsibility for gross negligence.

Section 278.

• A debtor is responsible for the fault of his statutory agent, and of persons whom he employs in fulfilling his obligation, to the same extent as for his own fault (e). The provision of 276, par. 2, does not apply.

Section 279.

• If the object owed is designated only by species, and so long as delivery of an object of the designated species is possible, the debtor is responsible for his inability to deliver, even though no fault is imputable to him.

Section 280.

• [I] Where the performance becomes impossible in consequence of a circumstance for which the debtor is responsible, the debtor shall compensate the creditor for any damage arising from the non-performance.
• [II] In case of partial impossibility the creditor may, by declining the still possible part of the performance, demand compensation for non-performance of the entire obligation, if he has no interest in the partial performance. The provisions of 346 to 356 applicable to the contractual right of rescission apply mutatis mutandis.

Section 281.

• [I] If, in consequence of the circumstance which makes the performance impossible, the debtor acquires a substitute or a claim for compensation for the object owed, the creditor may demand delivery of the substitute received or assignment of the claim for compensation.
• [II] If the creditor has a claim for compensation on account of non-performance, the compensation to be made to him is diminished, if he exercises the right specified in par. 1, by the value of the substitute received or of the claim for compensation.

Section 282.

• If it is disputed whether the impossibility of performance is the result of a circumstance for which the debtor is responsible, the burden of proof is upon the debtor.

Section 283.

• [I] If non-appellable judgment has been delivered against the debtor, the creditor may allot him a reasonable period for performance, with a declaration that he refuses to accept the performance after the expiration of the period. After the expiration of the period the creditor may demand compensation for non-performance, if the performance be not effected in due time; the claim for performance is barred. The liability for compensation does not arise if the performance becomes impossible in consequence of a circumstance for which the debtor is not responsible.
• [II] If at the expiration of the period the performance is only in part not effected, the creditor has also the right specified in 280, par. 2.

Section 284.

• [I] If the debtor does not perform after warning given by the creditor after maturity, he is in default through the warning. Bringing an action for the performance and the service of an order for payment in hortatory process are equivalent to warning.
• [II] If a time by the calendar is fixed for the performance, the debtor is in default without warning if he does not perform at the fixed time. The same rule applies if a notice is required to precede the performance, and the time is fixed in such manner that it may be reckoned by the calendar from the time of notice.

Section 285.

• The debtor is not in default so long as the performance is not effected in consequence of a circumstance for which he is not responsible.

Section 286.

• [I] The debtor shall compensate the creditor for any damage arising from his default.
• [II] If the creditor has no interest in the performance i in consequence of the default, he may, by refusing the performance, demand compensation for non-performance. The provisions of 346 to 356 applicable to the contractual right of rescission apply mutatis mutandis.

Section 287.

• A debtor is responsible for all negligence during his default. He is also responsible for impossibility of performance arising accidentally during the default, unless the injury would have arisen even if he had performed in due time.

Section 288.

• [I] A money debt bears interest during default at 4 per cent. per annum. If the creditor can demand higher interest on any other legitimate ground, this shall continue to be paid.
• [II] Proof of further damage is admissible.

Section 289.

• Interest for default shall not be paid upon interest. The right of the creditor to compensation for any damage arising from the default remains unaffected.

Section 290.

• If the debtor is bound to make compensation for the value of an object which has perished during the default, or which cannot be delivered for a reason which has arisen during the default, the creditor may demand interest on the amount to be paid as compensation, from the time which serves as the basis for the estimate of the value. The same rule applies if the debtor is bound to make compensation for the diminution in value of an object which has deteriorated during the default.

Section 291.

• A debtor shall pay interest on a money debt from the date of action commenced, even if he is not in default; if the debt does not become due until after that date it bears interest from the date of maturity. The provisions of 288, par. 1, and 289, sentence 1, apply mutatis mutandis.

Section 292.

• [I] If a debtor has to deliver a specific object, the claim of the creditor for compensation for deterioration, destruction, or impossibility of delivery arising from any other cause is, after the date of action commenced, determined according to the provisions (m) which apply to the relations between an owner and a possessor after the date of action commenced on a claim of ownership, unless a contrary intention in favour of the creditor appears from the obligation itself or from the default of the debtor.
• [II] The same rule applies to the claim of the creditor for delivery of, or compensation for, emoluments and to the claim of the debtor for reimbursement of outlay incurred.