BGH NJW 1999, 3704 V. Civil Senate (V ZR 168/98)
01 October 1999
Translated by:
Raymond Youngs
Professor Basil Markesinis




II. The appeal court propounds the view that the defendants had refused to approve the sale contract of the 3rd March 1995 by a document of the 24th March 1995; and this made the contract appear in the end to be invalid. The approval declared on the 13th April 1995 therefore had no effect. No confirmation or novation of the purchase contract by further notarised declarations of the 24th March 1995 and the 10th April 1995 had occurred. (...)

III. This does not stand up to legal examination.

1. The appeal court is admittedly not mistaken in law in assuming that the legal transaction, which had up to that point been potentially (schwebend) ineffective, became finally invalid with the refusal of approval to the notarised purchase contract of the 3rd / 6th March 1995 on the part of the defendants by their declarations on the morning of the 24th March 1995.


2. The appeal court's view that the claimant and the first defendant had not by the notarially authenticated declarations of the 24th March 1995 and the 10th April 1995 confirmed the legal transaction which finally became invalid should not be followed. The appeal court's interpretation is defective.

a) The interpretation of rules for individual contracts by the appeal court can be examined by the court dealing with the appeal in law in so far as statutory rules of interpretation, recognised principles of interpretation, conceptual rules, empirical principles or procedural provisions have been violated (references omitted). A recognised principle of interpretation is regard for the situation of the contractual partner's interests (BGH, BGHR BGB § 157 interpretation rule

1). The appeal court has violated this. Its interpretation amounts to saying that the declarations mentioned appear to be pointless. This is because approval of the contract of the 3rd / 6th March 1995 was no longer possible due to expiry of the relevant period. But according to general experience of life it must be assumed that it is the parties' intention that a contractual provision should have a legally significant content. Therefore if there are several possible interpretations, preference must be given to the one which gives real significance to the contractual norm, if it would otherwise appear to be (partially) pointless (BGH WM 1998, 1535). One possible interpretation here is that the claimant and the first defendant intended to confirm the sale contract of the 3rd / 6th March 1995 in the sense of § 141 (1) of the BGB. This provision admittedly does not apply directly, because the sale contract was not void but ineffective in the end due to refusal of approval. But there are no difficulties about application of § 141 (1) of the BGB by analogy to such ineffective legal transactions. The sense and purpose of the statutory regime do not dictate that confirmation of a void legal transaction should be permitted but not confirmation of a legal transaction which was ineffective in the end. The parties can have an interest in the implementation of such a transaction if the grounds which led to ineffectiveness have disappeared.


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