RGZ 86, 397 III. Civil Senate
04 May 1915
Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Kurt Lipstein
Professor Basil Markesinis

By a contract dated 28/31 October 1913 the defendant gave the plaintiff the option to hire the defendant's circus building for the year from 6 September 1914 to 31 August 1915 and for any of the following four years subject to certain conditions. It was agreed that the tenant would also assume the lessor's obligations towards the catering and cloakroom concessionaries, to arrange for performances or other events on at least 150 days or nights during a year, so as to enable them to exploit their concessions or to pay for each day less 300 Marks to the catering concessionaire and 60 Marks to the cloakroom concessionaire. The plaintiff, by a declaration made in time, exercised the option for the year running from 1 September 1914 to 31 August 1915. He believes, however, that he is not bound by the lease thus created, seeing that which has broken out. He brought an action for a declaration ... that his withdrawal from the contract was justified.

The Landgericht Berlin and the Kammergericht rejected the claim. On the plaintiff's second appeal the judgment below was confirmed for the following


Since according to the provisions of the present law the judge is not empowered to adjust the relations between the parties to a contract in order to mitigate the hardships of war, the only question is whether the plaintiff has a right to withdraw from the contract for the lease of the defendant's circus building because war has broken out. The answer must be in the negative.

The plaintiff argues in the first place that, as a result of the war he is precluded from the exercise of his contractual right of use for reasons which are not attributable to his person and is therefore relieved from the payment of rent in accordance with the principle expressed in s 552 BGB. This argument fails, apart from other objections, because both courts below have found as a fact that the operation of the circus had not been rendered impossible by war. This finding does not disclose any error of law ... The assertion of the plaintiff in the pleadings relied upon in the second appeal actually disclose only, as the court of appeal assumes, that it is doubtful whether the circus can be run for a profit or that it is impossible to do so. That this conclusion is factually correct follows also from the fact, which the plaintiff now admits, that at present circus performances are being staged in his own circus either by himself or by his brother.

A right to withdraw from a contract because of changed circumstances is ... not granted generally by the Civil Code and could only be allowed in the present circumstances, if it could be regarded as tacitly agreed [referenced]. The court below was right in holding that even by applying the principles of ss 133, 157 most extensively the contract cannot be interpreted to allow the plaintiff to withdraw from it, if he can no longer use the circus building with profit because of the war. Good faith and common practice do not justify in any circumstances that the plaintiff should shift to the defendant the loss which the war has caused to the plaintiff.

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