Book2 Chapter02 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 II. Obligations Ex Contractu.

Title I. Creation of Obligation, Scope of a Contract.

Section 305.

• For the creation of an obligation by juristic act, and for any alteration of the substance of an obligation, a contract between the parties is necessary, unless it is otherwise provided by law.

Section 306.

• A contract for an impossible performance is void.

Section 307.

• [I] A person who, in concluding a contract for an impossible performance, knew or ought to have known that it was impossible, is bound to make compensation for any damage which the other party has sustained by relying upon the validity of the contract; not, however, beyond the value of the interest which the other party has in the validity of the contract. The duty to make compensation does not arise if the other party knew or ought to have known of the impossibility.
• [II] These provisions apply mutatis mutandis if the performance is only partially impossible, and the contract is valid in respect of the possible part, or if only one of several acts of performance promised with election between them is impossible.

Section 308.

• [I] The impossibility of performance does not prevent the validity of the contract if the impossibility can be removed, and the contract is intended to be binding only if the performance becomes possible.
• [II] If an impossible performance is promised subject to any other condition precedent or limitation of a definite time, after which it is to become binding, the contract is valid if the impossibility is removed before the fulfilment of the condition or the arrival of the time.

Section 309.

• If a contract is contrary to a statutory prohibition, the provisions of 307, 308, apply mutatis mutandis.

Section 310.

• A contract whereby one party binds himself to convey his future property or a fractional part of his future property or to charge it with a usufruct, is void.

Section 311.

• A contract whereby one party binds himself to convey his present property or a fractional part of his present property or to charge it with a usufruct, requires judicial or notarial authentication.

Section 312.

• [I] A contract relating to the estate of an existing third person is void. The same rule applies to a contract relating to the compulsory portion or a legacy from the estate of an existing third person.
• [II] These provisions do not apply to a contract entered into between future statutory heirs relating to the statutory portion or the compulsory portion of one of them. Such a contract requires judicial or notarial authentication.

Section 313.

• A contract whereby one party binds himself to transfer ownership of a piece of land requires judicial or notarial authentication. A contract concluded without observance of this form becomes valid in its entirety if conveyance by agreement and entry in the land register have taken place.

Section 314.

• If a person binds himself to alienate or give a charge upon a thing, the obligation extends, in case of doubt, also to the accessories of the thing.

Section 315.

• [I] If the mode of performance is to be determined by one of the contracting parties, it is to be presumed, in case of doubt, that the determination is to be made in an equitable manner.
• [II] The determination is made by declaration to the other party.
• [III] If the determination is to be made in an equitable manner, the determination made is binding upon the other party only if it is equitable. If it is inequitable the determination is made by judicial decree; the same rule applies if the determination is delayed.

Section 316.

• If the extent of the counter-performance promised for an act of performance is not determined the determination, in case of doubt, is to be made by the party who is entitled to demand the counter-performance.

Section 317.

• [I] If the determination of the performance is left to a third party, it is to be presumed, in case of doubt, that it shall be made in an equitable manner.
• [II] If the determination is to be made by several third parties, the agreement of all is necessary in case of doubt; if a sum is to be specified, and if various sums have been specified, the average is to be taken.

Section 318.

• [I] The determination of the performance left to a third party is made by declaration to one of the contracting parties.
• [II] The determination made may be set aside on the ground of mistake, threats, or fraud, at the instance only of the contracting parties; the other party is defendant. The action must be brought without delay after the person entitled to bring it has obtained knowledge of the ground for attack. The right is barred if thirty years have elapsed after the determination has been made.

Section 319.

• [I] If a third party is to determine the performance in an equitable manner, the determination made is not binding upon the contracting parties if it is evidently inequitable. The determination in this case is made by judicial decree; the same rule applies if the third party cannot or will not make the determination, or if he delays it.
• [II] If the third party is to make the determination at his discretion the contract is not binding, if the third party cannot or will not make the determination, or if he delays it.