Invalidity of a declaration of intent – what is it? In civil law there are numerous provisions dealing with the validity of declarations of intent and contracts. One of these provisions is § 105 BGB, which regulates the nullity of declarations of intent.

In this article, we will take an in-depth look at § 105 BGB and explain the most important aspects of this provision.

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Invalidity of a declaration of intention: What is § 105 BGB?

§ Section 105 BGB regulates the nullity of declarations of intent. A declaration of intention that violates a statutory prohibition or is immoral is invalid from the outset. The nullity of a declaration of intent means that it has no legal effect and thus does not trigger any obligations or claims between the contracting parties.

Some examples of a nullity of declarations of intent may be:

  1. An agreement that violates a legal prohibition, for example the conclusion of a sham transaction.
  2. A contract concluded by taking advantage of a coercive situation or malice, for example a contract for the sale of a car where the seller has deceived the buyer about serious damage to the vehicle.

A declaration of intent that violates § 105 BGB is invalid from the outset. The nullity of a declaration of intent differs from the contestability of a declaration of intent, which is possible in certain cases under § 142 BGB. Whereas nullity results in a declaration of intent being ineffective from the outset, a contestable declaration of intent can be eliminated afterwards by contestation.

A null and void declaration of intent is ineffective from the outset and has no legal effects.

Prerequisites for the nullity of a declaration of intent

In order for a declaration of intent to be considered null and void, certain requirements must be met. These are:

Violation of a legal prohibition:

A declaration of intent is void if it violates a statutory prohibition. This may be the case, for example, if an agreement contradicts the provisions of the Criminal Code or if a transaction is concluded without required permits or approvals.

Immorality:

A declaration of intent is also void if it is immoral. A declaration of intent is immoral if it is contrary to good morals. This includes, for example, contracts concluded by taking advantage of a coercive situation or malice.

Nullity under other provisions:

The nullity of a declaration of intent can also arise from other provisions of the Civil Code, for example from §§ 105a, 116, 117 or 138 BGB. These provisions regulate certain cases in which a declaration of intent is void.

In order to be able to assert the nullity of a declaration of intent, the prerequisites must be proven. In practice, this is often difficult, especially in the case of the immorality of a declaration of intent, as the interpretation of the term “good morals” is not clear. In many cases, it is therefore advisable to consult an experienced lawyer for a legal assessment.

Types of nullity of a declaration of intent

There are different types of nullity of declarations of intent, which can be distinguished in detail:

Absolute nullity:

A declaration of intent is absolutely void if it violates a legal prohibition. This includes, for example, the conclusion of sham transactions, the agreement of usurious interest rates or the undertaking of transactions that offend common decency.

Relative nullity:

A declaration of intent is relatively void if it is immoral. This includes, for example, contracts that were concluded by taking advantage of a predicament or malice. In contrast to absolute nullity, a relatively null declaration of intent can be cured by confirmation or by waiving the challenge.

Special forms of nullity:

There are also other special forms of nullity of declarations of intent that may arise in certain situations. For example, a declaration of intent is void if it was made through the error of a person with limited capacity (section 104(1) of the Civil Code). Another special form of nullity is erroneous consent to medical treatment, which occurs, for example, when a patient is pressured to accept a certain method of treatment.

Consequences of nullity

A null and void declaration of intent has no legal effects. This means that it does not trigger any obligations or claims between the contracting parties. The contracting parties are to be placed in the same position as if the contract had never existed.

The consequences of nullity are:

Reversal

The services rendered by the contracting parties must be returned. This includes the repayment of money already paid or the return of goods already received.

Compensation for damages

In the case of the nullity of a contract, claims for damages can be asserted. Here, for example, the costs for the reversal of the contract or damages caused by the performance of the contract can be claimed.

Criminal law consequences

If a declaration of intent violates a legal prohibition, there may also be criminal law consequences. These include, for example, violations of the Criminal Code or other laws.

In summary, the nullity of a declaration of intent means that it has no legal effect. The contracting parties must return the services rendered and may assert claims for damages. Violations of legal prohibitions may also have penal consequences.

Invalidity of a declaration of intent: Relationship to other provisions

The provisions on the nullity of declarations of intent are closely related to other provisions of the Civil Code.

In particular, the contestability of declarations of intent under section 142 of the Civil Code and the invalidity of declarations of intent under section 125 of the Civil Code must be mentioned here.

In contrast to the nullity of a declaration of intent, a contestable declaration of intent can be eliminated retrospectively by contestation. § Section 142 BGB regulates the contestability of declarations of intent and lists the grounds that can lead to contestability. A challenge can be made, for example, in the case of error, fraudulent misrepresentation or threat.

The invalidity of declarations of intent according to § 125 BGB occurs if a contract is void as to form. A contract is void as to form if it does not comply with the prescribed formal requirements, for example, if a contract of sale of a property has not been notarised. In contrast to nullity and voidability, contracts that are void as to form can be cured by eliminating the formal defects.

The provisions on the nullity of declarations of intent are thus closely related to other provisions of the Civil Code. The contestability of declarations of intent and the invalidity of contracts due to formal defects are worth mentioning here. It is therefore important to examine the various provisions carefully in each individual case in order to be able to make a legal assessment.

Burden of proof in the case of invalidity of a declaration of intent

In the event of the nullity of a declaration of intent, the burden of proof lies with the person who wishes to assert the nullity. This means that the person who claims that a declaration of intent is void must also provide the evidence for this.

Various means of proof can be used to prove the invalidity of a declaration of intent due to a violation of a legal prohibition or due to immorality. For example, documents, witnesses or circumstantial evidence can be used as evidence.

However, it is important to note that in many cases it can be difficult to prove the nullity of a declaration of intent beyond reasonable doubt. Especially in the case of immorality, the interpretation of the term “good morals” can be inconsistent and lead to different legal assessments.

It is therefore advisable to consult an experienced lawyer in case of doubts about the validity of a declaration of intent in order to obtain a legal assessment and support in providing evidence.

Time limits for asserting the invalidity of a declaration of intent

In principle, there is no time limit for asserting the invalidity of a declaration of intent. However, there are certain deadlines within which the nullity must be asserted.

Breach of a statutory prohibition:

In the case of a breach of a statutory prohibition, the nullity must be asserted within 30 years (section 195 BGB). This is the general limitation period for claims arising from contracts.

Immorality:

If a declaration of intent is immoral, the nullity must be asserted within 3 years (§ 195 BGB). This period begins at the time when the immoral circumstances became known.

Nullity according to other regulations:

The time limits for asserting nullity under other provisions of the Civil Code may vary. For example, the nullity of a declaration of intent due to error must be asserted within 1 year (section 121 BGB).

It is important to carefully check the deadlines for asserting nullity, as a late assertion may result in the nullity no longer being enforceable.

An example of a late assertion of invalidity is the limitation of claims under a contract. For example, if a buyer discovers defects in a purchased good, he must assert the invalidity within a certain period in order to enforce his claims. Once this period has expired, the buyer can no longer assert his claims.

These time limits may vary depending on the type of invalidity and must be carefully observed in order to ensure the enforcement of the invalidity.

Legal consequences of invalidity in individual cases

The legal consequences of the nullity of a declaration of intent depend on the circumstances of the individual case. The following are some examples of the legal consequences of nullity:

  • Sales contract: In the event of the nullity of a sales contract, the buyer must return the purchased goods and the seller must refund the money already paid.
  • Employment contract: In the case of the nullity of an employment contract, the work services do not have to be performed. The parties must act as if the contract had never existed.
  • Tenancy agreement: In the event of the nullity of a tenancy agreement, the tenant must vacate the flat and the landlord must repay any rent already paid.
  • Loan agreement: In case of nullity of a loan agreement, the lender must repay the money already paid and the borrower does not have to repay the loan.

It is important to note that the legal consequences of the nullity of a declaration of intent can be very complex in individual cases. It is therefore advisable to consult an experienced lawyer in case of doubts or questions in order to obtain an accurate legal assessment.

In summary, it can be said that the legal consequences of the nullity of a declaration of intent depend on the respective circumstances of the individual case. In the case of contract nullity, the contracting parties must put themselves in a position as if the contract had never existed and services already rendered must be returned.

Concluding considerations on § 105 BGB

The nullity of declarations of intent under § 105 BGB is an important legal institution of German civil law. It ensures that contracts that violate legal prohibitions or morality are invalid from the outset.

The invalidity of a declaration of intent has far-reaching consequences for the contracting parties and can, for example, result in payments already made having to be repaid or services rendered having to be returned.

However, it is important to note that the requirements for the nullity of a declaration of intent are very strict and are not easy to fulfil. A precise legal examination of the respective circumstances is therefore essential in order to be able to make a legally secure assessment.

Invalidity of a declaration of intent: Legal advice from a lawyer

In case of doubts or questions regarding the nullity of declarations of intent, it is advisable to consult an experienced lawyer in order to obtain an accurate legal assessment.

The nullity of declarations of intent is thus an important instrument of German civil law to ensure compliance with statutory provisions and the protection of good morals. However, it is important to carefully examine the prerequisites and consequences of nullity in each individual case and to seek legal advice in order to be able to make legally secure decisions.

If you have any questions on the subject of the nullity of declarations of intent or need legal assistance, we will be happy to help you. Our experienced team of lawyers will be happy to advise and represent you in all civil law matters.

Simply contact us via our website, email or telephone to arrange a consultation. We look forward to helping you and assisting you with any questions you may have regarding the invalidity of declarations of intent.