Dissent

Definition and legal basis:

In German contract law, dissent refers to the lack of agreement between the contracting parties. It exists if the parties only appear to have reached an agreement when the contract is concluded, but actually have different ideas about the content of the contract. Dissent is not expressly regulated in the German Civil Code, but arises from the general principles of contract law, in particular from Sections 154 and 155 of the German Civil Code.

A disagreement generally means that no effective contract is concluded, as there is no consensus of intent required to conclude a contract.

Types of dissent:

A distinction is made between different types of dissent:

1. open dissent:
The parties are aware that no agreement has been reached.

2. hidden dissent:
The parties mistakenly assume that they have reached an agreement.

3. total dissent:
No agreement on key contractual points.

4. partial dissent:
Disagreement only on individual, non-essential points.

Legal treatment of dissent:

The legal treatment of the dissent depends on its nature:

1. open dissent (§ 154 BGB):
– No conclusion of contract
– Possible liability according to the principles of culpa in contrahendo

2. hidden dissent:
– in principle no conclusion of contract
– possible reinterpretation or contract amendment in accordance with Section 155 BGB

3. partial disagreement (Section 155 BGB):
– contract can be valid if it can be assumed that it would have been concluded even without agreement on the disputed point
– supplementary interpretation of the contract to fill gaps

Differentiation from other legal institutions:

Dissent must be distinguished from related concepts:

1. error:
In the case of error, there is a faulty formation of will; in the case of dissent, there is a lack of consensus of will.

2. interpretation:
Interpretation serves to determine the actual content of the contract, while dissent establishes the absence of an agreement.

3. avoidance:
Avoidance presupposes the effective conclusion of a contract, which is not the case with dissent.

Practical significance and case constellations:

Dissent plays a role in various practical situations:

1. contract negotiations:
– ambiguities about key contractual points
– misunderstandings in communication

2. standard contracts:
– contradictions between the parties’ general terms and conditions (“Battle of Forms”)

3. international contracts:
– Linguistic and cultural misunderstandings

4. complex transactions:
– disagreement on technical details or ancillary provisions

Legal consequences and possible solutions:

The identification of a dissent has various consequences:

1. nullity of the contract:
In the event of total dissent, no contract is concluded.

2. partial invalidity:
In the event of partial dissent, the contract may be partially valid.

3. supplementary interpretation of the contract:
Filling gaps in the event of partial dissent in accordance with Section 155 BGB.

4. liability arising from culpa in contrahendo:
Possible compensation for useless expenses.

5. renegotiation:
parties can try to resolve the disagreement by renegotiating.

Prevention and avoidance of dissent:

The following measures can be taken to avoid dissent:

1. clear and precise contract wording
2. Careful documentation of contract negotiations
3. Use of definitions and definitions of terms
4. Use of checklists for key contractual points
5. Professional translations for international contracts

Current developments and case law:

The case law on dissent is constantly evolving:

1. digitalization:
New issues in the context of electronic contracting and automated systems.

2. international aspects:
Consideration of dissent in cross-border contracts and in conflict with foreign legal systems.

3. complex contractual structures:
Dealing with dissent in multi-level or networked contractual relationships.

4. industry-specific interpretation:
Consideration of industry standards and practices when assessing a possible dissent.

Summary and outlook:

Dissent is an important concept in contract law that emphasizes the limits of contractual freedom and the need for a genuine meeting of the minds. Its treatment often requires a careful analysis of contract negotiations and documents, as well as a balancing of the interests of both parties. In an increasingly complex and globalized business world, precise contract drafting and communication continues to gain importance in order to avoid dissent and ensure legal certainty. At the same time, the flexible handling of dissent by the courts remains important in order to find fair and practicable solutions in individual cases.