Schadensersatz aus Verfügungsgeschäften? Zum Hintergrund des § 160 BGB

Liability for Breach of Conditional Obligations – Historical Background and Modern Problems of § 160 BGB The effects of a contract can be made dependent upon a condition, in the sense of an uncertain future event. In the period between the conclusion of the contract and the occurrence of the event, it is uncertain whether the contract will be effective: the condition »is pending«. The later occurrence of the event has certain effects regarding this period. According to section 160 of the German Civil Code (BGB), the party who was granted a conditional right can claim damages from the other party if the right which was made dependent on the condition is infringed by acts which the other party committed in the intermediate period, e.g. if the conditional seller damages the object of sale after conclusion of the contract but before the event occurs. This rule was part of the ius commune; its origins can be found in Roman law. Like other effects of the fulfilment of the condition regarding the intermediate period, it can be explained in two different ways, namely (i) by a retrospective effect of the fulfilment of the condition or (ii) by the idea that the parties are bound by the conditional contract, even before the time of fulfilment of the condition. This paper examines the history of, and different explanations for, the rule, and asks whether it can be applied to »real agreements«, which do not create obligations but have the sole effect of transferring real rights.