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 the agreement of intent required for the conclusion of a contract is lacking.

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 disagreement:
No agreement on essential contractual points. 4. partial disagreement:
Disagreement only on individual, non-essential points.

Legal treatment of dissent:

The legal treatment of the disagreement depends on its nature: 1. Open disagreement (Section 154 BGB):
– No conclusion of contract
– Possible liability according to the principles of culpa in contrahendo 2. Hidden disagreement:
– In principle no conclusion of contract
– Possible reinterpretation or contract supplementation according to Section 155 BGB 3. Partial dissent (Section 155 BGB):
– Contract may 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:
An error is the result of an erroneous formation of will, while dissent is the result of a lack of agreement. 2. interpretation:
Interpretation serves to determine the actual content of the contract, while dissent establishes the absence of 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 essential 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 about technical details or ancillary provisions Legal consequences and possible solutions: The discovery of a disagreement has various consequences: 1. nullity of the contract:
In the event of total disagreement, no contract is concluded. 2. partial nullity:
In the event of partial dissent, the contract may be partially valid. 3. supplementary interpretation of the contract:
Gap filling in case of partial dissent according to § 155 BGB. 4. liability arising from culpa in contrahendo:
Possible compensation for useless expenses. 5. renegotiation:
Parties can attempt to resolve the disagreement through renegotiation.

Prevention and avoidance of dissent:

The following measures can be taken to avoid a disagreement: 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 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.