The purchase contract
The contract of sale is a contract between a buyer and a seller in which the two parties agree on an object to be sold. It represents the most common sales transaction in the economy and is regulated in Section 433 of the Civil Code (BGB).
How does a purchase contract come about?
In order for a purchase contract to be concluded, two concurring declarations must be present, offer and acceptance (§§ 145 ff. BGB). These declarations are called declarations of intent. The offer and acceptance are expressions of intent which aim to conclude a contract.
Even a concordant misdescription of the thing does not prevent the conclusion of the contract. These cases are covered by the principle of falsa demonstratio non nocet encompassed.
The declaration of intent
In the case of a declaration of intent, a distinction is made between an objective and a subjective fact.
The objective fact is the element that is externally recognizable to an outside person. A decisive point here is whether a person recognizably wishes to be legally bound by his or her statement.
This can be expressed both expressly and conclusively (implied), through unambiguous behavior such as a nod of the head. This distinguishes declarations of intent from other similar declarations that do not express the will to be legally bound.
Example:
The mere display of objects for sale is not a legally binding declaration of intent. Since here only the invitation is present that another person can make an offer (invitatio ad offerendum). If the intention to be legally bound is missing in the objective facts, the declaration of intent is null and void.
The subjective facts of a declaration of intent are not recognizable to an outside person. This presupposes an intention to act, an awareness of the declaration and a business intention.
The will to act is present in the case of an action consciously controlled by the will; it is not present, for example, in the case of sleep, hypnosis or vis absoluta (here the person concerned cannot form his own will or assert it by the use of force).
The consciousness to declare is the will to declare something legally significant and the business will is the will to a very specific legal consequence. If the will to act and the consciousness to declare are not present, the declaration of intent is invalid. However, if only the business intention is missing, the declaration of intent is still valid.
Essential components of the purchase agreement
In the case of a purchase contract, the declarations of intent must contain the essential elements of the contract. These are the contracting parties between whom the purchase contract is to be concluded (buyer and seller), the object of purchase, and the purchase price (essentialia negotii). A conclusion of the contract can be brought about only if all contract components are present.
If both parties designate the object of purchase incorrectly, the purchase agreement is still legally valid(falsa demonstratio non nocet).
What obligations arise from the purchase contract?
A distinction is made between primary and secondary contractual obligations. The main performance obligations lead to the conclusion of the contract.
In the case of the purchase contract, these are according to § 433 paragraph 1 sentence 1 BGB for the seller:
- to hand over the item to the buyer
- to provide the purchaser with ownership of the item (the item must be free of material defects and defects of title in accordance with Section 433 (1) sentence 2 of the German Civil Code).
The buyer, in turn, is obligated according to § 433 para. 2 BGB:
- pay the agreed purchase price
- to accept the purchased item from the seller
In addition, other (secondary) obligations may arise from the law or from the contract, including advice or shipment of the goods for the seller.
The form of a contract of sale
In principle, the purchase agreement is free of form. However, this does not apply to immovable property, such as land. Here, special formal requirements are needed, such as notarization in accordance with Section 311b (1) of the German Civil Code (BGB).
