Book2 Chapter03 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 III. Extinction of Obligations.

Title I. Fulfilment.

Section 362.

• [I] An obligation is extinguished if the performance due be effected in favour of the creditor.
• [II] If the performance is effected in favour of a third party for the purpose of fulfilment, the provisions of 185 apply.

Section 363.

• If the creditor has accepted as fulfilment an act of performance done in his favour as fulfilment, the burden of proof is upon him if he will not admit the performance to be valid as fulfilment on the ground that it is other than the performance due, or that it was incomplete.

Section 364.

• [I] An obligation is extinguished if the creditor accepts in lieu of fulfilment another performance than that agreed upon.
• [II] If the debtor, for the purpose of satisfying the creditor, assumes a new obligation towards him, it is not to be presumed, in case of doubt, that he assumes the obligation in lieu of fulfilment.

Section 365.

• If a thing, a claim against a third party, or any other right is given in lieu of fulfilment, the debtor shall warrant in the same manner as a seller against a defect of title or a defect of quality.

Section 366.

• [I] If a debtor is bound to the creditor to do similar acts of performance by virtue of several obligations, and if the performance effected by him is insufficient for the discharge of all the debts, that debt is discharged which he specifies on effecting the performance.
• [II] If the debtor makes no specification, among several debts due that one is first discharged which affords the creditor least security; among several equally secure debts the one most burdensome to the debtor; among several equally burdensome debts the oldest debt; and where several are equally old every debt proportionately.

Section 367.

• [I] If the debtor has to pay interest and costs besides the principal performance, the value of an act of performance insufficient to discharge the whole debt is applied first to the costs, then to the interest, and lastly to the principal performance.
• [II] If the debtor specifies any other application the creditor may refuse acceptance of the performance.

Section 368.

• On receipt of the performance the creditor shall on demand give a written acknowledgment of receipt (i.e., a receipt). If the debtor has a legal interest in the making of the receipt in any other form he may require it to be made in such other form.

Section 369.

• [I] The debtor shall bear and advance the cost of the receipt, unless a contrary intention appears from the legal relation existing between him and the creditor.
• [II] If, in consequence of a transfer of the claim or by way of inheritance, several creditors take the place of the original creditor, the excess of cost shall be borne by the creditors.

Section 370.

• The bearer of a receipt is deemed to be authorised to receive the performance, unless circumstances known to the party performing rebuts the presumption of such authorisation.

Section 371.

• If a promissory note has been issued for the claim, the debtor may demand the return of the note together with the receipt. If the creditor maintains that he is not in a position to return it, the debtor may demand a publicly certified acknowledgment that the debt is extinguished.