Treuwidriges Verhalten bei Formverstößen

For more than 100 years, it has been a controversial topic in case law and legal literature how to solve contract cases in which a breach of the implied covenant of good faith resulted in a violation of mandatory formality requirements. The court decisions rely heavily on the facts of the individual cases and are sometimes inconsistent. No prevailing approach could be found in legal literature.

The work discusses the difficulties in solving these cases and describes the development and present state of the relevant case laws and legal literature within the scope of § 125 BGB and § 550 BGB. Based on this, the work proposes a solution based on the doctrine of reliance and expectation damages and shows the limits of the principle of ‘abuse of rights’ in this context. The work analyses the breach of duty and recoverable damages where the contract formality requirements are violated, and it discusses the possibility of using so-called ‘writing healing clauses’ within the scope of § 550 BGB.