Studien zum Zivilrecht, Band 105
Hamburg 2015, 202 Seiten
deutsch | englishThe German “Schuldrechtsmodernisierungsgesetz” (reform of the “Law of Obligations”) of 2001 has redefined the tension between the law on unjust enrichment on the one hand, and the statutory right of withdrawal from a contract on the other. Contrary to the expectations of the legislature, the new version of the right of withdrawal from a contract has neither improved the defective reasoning of the “Saldotheorie” (a theory on balancing two bilateral claims in German law of unjust enrichment) nor corrected its consequences. Rather than applying the “Saldotheorie” to reciprocal agreements between two parties based on the law of unjust enrichment, the author proposes the analogous application of the modernized “Law of the Consequences of Withdrawal from a Contract”. In the privileged treatment of article 346 para. 3 no. 3 BGB, the author aims at a common criterion which he generalizes from the exceptions to the “Saldotheorie”.