Die Willenserklärung

Wir werden uns nunmehr mal mit der Frage befassen, wie denn ein solches Rechtsgeschäft eigentlich wirksam zustande kommt. Dabei wird das für alle Rechtsgeschäfte notwendige Grundgerüst erörtert. Es bestehen aber darüber hinaus in vielfacher Hinsicht zusätzliche Wirksamkeitserfordernisse, auf die die anschließenden Markierungen eingehen werden. Das Rechtsgeschäft stellt das bei weitem wichtigste Instrument zur Gestaltung der privatrechtlichen Beziehungen der Menschen untereinander dar. Von entsprechend übergeordneter Bedeutung ist dieser zentrale Begriff des Zivilrechtes für die juristische Wissenschaft, Praxis und Ausbildung.

Wie schon ausgeführt, ist das Rechtsgeschäft ein Rechtsinstitut, das eine Willenserklärung oder eine Mehrheit von Willenserklärungen, allein oder in Verbindung mit anderen Tatsachen enthält und an das die Rechtsordnung den Eintritt eines gewollten rechtlichen Erfolges knüpft. Diese Definition gilt für alle Arten von Rechtsgeschäften, also sowohl einseitige als auch mehrseitige, sowohl Verpflichtungs- als auch Verfügungsgeschäfte, sowohl kausale als auch abstrakte Rechtsgeschäfte.

Da jedes Rechtsgeschäft aus einer oder mehreren Willenserklärungen besteht, müssen wir uns vorab zwingend mit der Frage befassen, was denn Willenserklärungen sind und wie sie wirksam zustande kommen.

Bei der Willenserklärung handelt es sich bekanntlich um eine Willensäußerung, die auf die Herbeiführung eines bestimmten rechtlichen Erfolges gerichtet ist.

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Sie werden sogleich die große Ähnlichkeit der beiden Definitionen von Rechtsgeschäft und Willenserklärung erkannt haben:

In beiden ist nämlich auf die Herbeiführung bzw. den Eintritt eines bestimmten rechtlichen Erfolges abgestellt. Beide Begriffe haben also mit einer Veränderung einer bestehenden Rechtslage zu tun.

Der entscheidende Unterschied zwischen den beiden Rechtsinstituten liegt nun in Folgendem: Während die Willenserklärung die rechtliche Veränderung nur bezweckt, tritt diese durch das Rechtsgeschäft unmittelbar schon ein.

Beispiel: Gibt Max ein Kaufangebot ab, so handelt es sich um eine Willenserklärung. Max äußert nämlich seinen Willen, einen bestimmten rechtlichen Erfolg – Abschluss eines Kaufvertrages – herbeizuführen: Er möchte eine bestimmte Sache zu einem bestimmten Preis kaufen.

Ein Rechtsgeschäft stellt dieses Angebot aber noch nicht dar, weil der gewünschte rechtliche Erfolg noch nicht eingetreten ist. Solange Moritz das Angebot nicht seinerseits angenommen hat, hat sich die Rechtslage nämlich noch nicht in dem gewünschten Sinne verändert, da der Erklärende Max noch nicht den Anspruch auf Übergabe und Übereignung der Kaufsache und damit die von ihm gewünschte Position eines Käufers aus § 433 Abs. 1 erlangt hat.

Bei den einseitigen Rechtsgeschäften kommt es allerdings auch – und sogar häufig – vor, dass eine Willenserklärung zugleich das (ganze) Rechtsgeschäft darstellt.

Ein Beispiel bildet die ordentliche Kündigung eines Dauerschuldverhältnisses (abstrakt: § 314, konkretisiert z.B. für das Arbeitsverhältnis in §§ 620, 626 Abs. 1, für Mietverträge in § 543 Abs. 1). Eine Kündigung enthält nicht nur den Willen des Kündigenden, dass etwa der Dienst- oder Arbeitsvertrag beendet sein solle, sondern der Dienstvertrag endet durch die wirksame Kündigung auch tatsächlich, und zwar ohne dass der Kündigungsempfänger dazu beitragen müsste oder dies verhindern könnte. Bitte machen Sie sich sorgfältig klar, warum dieses Beispiel beide Definitionen erfüllt.

Ein Gegenbeispiel ist die Eigentumsaufgabe (Dereliktion) des § 959. Dieses einseitige Verfügungs-Rechtsgeschäft erfordert neben der einseitigen Willenserklärung des Eigentumsverzichts („Ich will das Eigentum nicht mehr!“) auch noch den Realakt der Besitzaufgabe, um den Rechtserfolg herbeizuführen.

In Abgrenzung zu den einseitigen und zweiseitigen Rechtsgeschäften muss man einleitend hier noch spitzfindig darauf hinweisen, dass eine Willenserklärung aus ihrer Definition heraus nicht „einseitig“ oder „zweiseitig“ sein kann. Mit dem Begriff „zweiseitig“ meint man nämlich, dass an einem Rechtsinstitut mehrere Personen mit unterschiedlichen, und zwar gegenläufigen Positionen beteiligt sind, wie dies bei einem Rechtsgeschäft häufig der Fall ist (z.B. Verkäufer/Käufer; Vermieter/Mieter; Werkunternehmer/Besteller usw.). Zwei solche gegenläufigen Positionen können aber bei einer Willenserklärung denknotwendigerweise nicht vorliegen, handelt es sich doch um die Äußerung eines Willens, zur Herbeiführung eines bestimmten rechtlichen Erfolges. Denkbar ist allenfalls, dass mehrere Personen denselben Willen gleichzeitig (etwa schriftlich) äußern. Dies macht die Willenserklärung nach den obigen Erläuterungen des Begriffes aber nicht zu einer „zweiseitigen“.

Beispiel: Die Eheleute Müller erklären gegenüber ihrem Wohnungsvermieter in einem gemeinsamen Brief, den beide unterschreiben, die Kündigung des Mietvertrages: Sie geben (beide gemeinsam) eine Willenserklärung ab.

Gleichwohl liest man die Begriffe „einseitige“ oder gar „zweiseitige“ Willenserklärung nicht selten in Klausuren. Derartige Begriffsverwirrungen legen den – meist zutreffenden – Schluss nahe, dass der Verfasser die Materie nicht vollständig verstanden hat. Es ist zwar mühselig, aber gerade für den juristischen Anfänger sehr wesentlich, sich einer exakten Sprache und der zutreffenden juristischen Begriffe zu bedienen. Eine Denk- und Sprachdisziplin erleichtert das Verständnis der schwierigen juristischen Materie erheblich, weil sich nur so zügig ein systematisches juristisches Gedankengebäude, Denk- und Sprachformen und deren Inhalte über den zu erlernenden Stoff erschließen können, von denen aus dann weiteres Wissen assoziativ erarbeitet werden kann. (Vgl. „Juristische Entdeckungen – Bd. I – Der Weg in das juristische Studium“.)

Den kleinsten Baustein jedes Rechtsgeschäftes bildet also die Willenserklärung. Die auch grafisch soeben erläuterte Definition der Willenserklärung enthält zwei wesentliche Elemente:

Der Erklärende muss zunächst den Willen bilden, einen bestimmten rechtlichen Erfolg herbeizuführen (Willensbildung).

Sodann muss er diesen Willen auch äußern; der nicht erklärte Wille ist bedeutungslos (Willensäußerung).

Die Willensbildung

Welche Anforderungen an die Willensbildung des Erklärenden zu stellen sind, soll hier nur kurz gestreift werden.

Der Erklärende muss zunächst einen sogenannten Handlungswillen haben.

Unterschreibt der Schwiegervater in Hypnose eine Bürgschaftserklärung für das Darlehen des Schwiegersohns (§§ 766, 765), oder zwingt die Krankenpflegerin Emma die gebrechliche pflegebedürftige Oma durch unwiderstehliche Gewalt, ein Testament zu ihren Gunsten zu schreiben (§ 2247), indem sie der Oma die Hand gewaltsam führt, so stellen die errichteten Urkunden nach außen hin Willenserklärungen dar. Die Erklärungen sind aber ohne den Willen der Personen (Schwiegervater und Oma) entstanden, da beide gar nicht gehandelt haben. Es fehlte ihnen der Handlungswille.

Der Erklärende muss weiterhin ein sogenanntes Erklärungsbewusstsein haben.

Winkt in einer Versteigerung Oli seiner Freundin Sabine freundschaftlich zu und erhält er deshalb den Zuschlag vom Auktionator für die antike chinesische Vase im Wert von 10.000 €, so liegt ein Angebot oder eine Annahme eines Versteigerungsrechtsgeschäfts nicht vor. Oli fehlt das Bewusstsein, mit seinem Handzeichen etwas Rechtserhebliches zu tun und damit der Wille, eine Rechtsfolge auszulösen. Lädt Oli seine schöne Freundin Sabine zum Abendessen ein, besinnt sich aber kurz vorher auf die noch schönere Helena, so kann Sabine den Oli nicht auf Erfüllung oder Schadenersatz wegen Nichterfüllung verklagen. Oli hat bei diesem sogenannten „Gefälligkeitsverhältnis“ nicht den Willen, sich rechtlich gegenüber Sabine binden zu wollen. Ihm fehlt das (Willens-) Erklärungsbewusstsein.

Der Erklärende muss schließlich einen sogenannten Geschäftswillen haben.

In einer Metzgerei erklärt Frau Schmitz: „Ich möchte zwei Kilogramm Schweinefilet kaufen“, sie meinte jedoch zwei Pfund Schweinefilet. Zwar wollte Frau Schmitz handeln, auch ist sie sich bewusst, dass sie etwas Rechtserhebliches erklärt, also Erklärungsbewusstsein bezüglich eines Kaufvertrages hat, ihr erklärter Wille (2 Kilo) stimmt jedoch mit ihrem wahren Willen (2 Pfund) nicht überein. Wille und Erklärung fallen im Hinblick auf das Geschäft „Schweinefiletkauf“ bzgl. der Menge auseinander. Man spricht dann im juristischen Sprachgebrauch von einem „Willensmangel“. Derartige Mängel im Geschäftswillen können durch Irrtum, Täuschung oder Drohung, bewusst oder unbewusst eintreten und gehören systematisch zum Gebiet der Anfechtung von Willenserklärungen. Hier nur soviel: Da Frau Schmitz sich bewusst war, rechtsgeschäftlich zu handeln, und da sie dies auch gewollt hat, und da letztlich der Metzger auf die Erklärung vertraut hat, führt der fehlende Geschäftswille im Interesse des Metzgers nicht dazu, dass überhaupt keine Willenserklärung vorliegt; die Willenserklärung liegt vor. Sie ist allerdings durch einen Irrtum willensmängelbehaftet und berechtigt die mit fehlerhaftem Geschäftswillen handelnde Frau Schmitz lediglich zur Anfechtung (§§ 142, 119 Abs. 1). Hierzu kommen wir später!

Für die weitere Erörterung wollen wir – bis auf Widerruf – jeweils davon ausgehen, dass der Betreffende, ohne einem derartigen Willensmangel zu unterliegen, mit Handlungswillen und Erklärungsbewusstsein gerade die Rechtsfolge auch wirklich herbeiführen will, die er durch die Willensäußerung zum Ausdruck bringt.

Die Willensäußerung

Unter der Willensäußerung versteht man die sich aus der Definition der Willenserklärung ergebende Notwendigkeit, dass der Betreffende seinen rechtsgeschäftlichen Willen auch erklärt, also „äußert“, sich seines Willens „entäußert“.

Beispiel: Herr Müller hat ein schriftliches Angebot des Wohnungseigentümers Schmidt aus Hamburg erhalten. Um dieses Angebot anzunehmen, also eine Willenserklärung mit dem Inhalt einer Annahme abzugeben, genügt es nun nicht, dass Herr Müller denkt: „Die Wohnung ist für meine Familie gut geeignet, die möchte ich haben.“ Er muss diesen Gedanken vielmehr auch nach außen kundtun, ihn manifestieren, d.h. deutlich machen. Die Anforderungen an diese (Ent-)Äußerung des Willens hängen noch davon ab, ob ein Adressat vorhanden ist oder nicht; dazu gleich mehr.

Die äußere Form der Willenserklärung

Zunächst stellt sich die Frage, in welcher Form der Erklärende seinen Willen äußern muss. Unter der Form versteht der Jurist das äußere Erscheinungsbild einer Erklärung. Neben der am häufigsten verwendeten Form, nämlich der mündlichen Erklärung, gibt es z.B. noch die schriftliche Form oder die notarielle Beurkundung. Mit diesen und anderen Formen befassen wir uns aber erst später, wenn wir den Vertrag „fertig“ haben. Für das Verständnis der Willenserklärung muss aber hinsichtlich der Formfragen bereits hier auf Folgendes hingewiesen werden:

Anstatt seinen Willen ausdrücklich zu äußern, genügt es auch, wenn der Erklärende durch eine Geste seinen Willen zum Ausdruck bringt. Nickt z.B. in einer Gaststätte der Gast auf die Frage der Kellnerin, ob er noch ein Bier möchte, mit dem Kopf, so hat er durch das Nicken eine Willenserklärung abgegeben, nämlich den Willen geäußert, ein Glas Bier kaufen zu wollen.

Es braucht sich aber noch nicht einmal um eine Geste, wie das Nicken, zu handeln, die ausschließlich gerade nur zu dem Zweck vorgenommen wird, die ausdrückliche Willenserklärung zu ersetzen. Vielmehr reicht auch jedes sonstige Verhalten aus, das dem Beobachter den Willen des Erklärenden vermittelt, sogenanntes „schlüssiges“ oder auch „konkludentes“ Verhalten (lat.: conclusio, d.h. Schluss, Folgerung).

    • Der Gast schiebt dem Wirt auf dessen entsprechende Frage wortlos sein leeres Bierglas hin.

    • Der Dozent nimmt sich einer vereinbarten Gepflogenheit folgend in der Pause wortlos in der Kantine eine dort stehende Tasse Kaffee weg.

    • Der Passant legt am Kiosk 5 € auf die Ablage und zeigt auf den „Spiegel“.

    • Der Verkäufer nimmt das Geld an sich und gibt dem Kunden die Zeitung und das Wechselgeld.

Dies hat seinen Sinn darin, dass auch ein derartiges konkludentes Verhalten den Willen des Erklärenden eindeutig zum Ausdruck bringt, er ihn also „äußert“. Es würde daher einen unnötigen Formalismus darstellen, von jedem Erklärenden die Abgabe seiner Willenserklärung immer in (zumindest) mündlicher Form zu verlangen. Dies wäre angesichts der Vielzahl täglich abgeschlossener Rechtsgeschäfte sowie angesichts der juristischen Laienhaftigkeit der meisten Bürger auch kaum praktikabel.

Besonderer Erörterung bedarf in diesem Zusammenhang noch die Problematik des Schweigens im Rechtsverkehr. Dies wird am ehesten im Rahmen von vertraglichen Annahmeerklärungen bedeutsam.

Beispiel: Versandhändler V verschickt an einen wahllos aus dem Internet ausgewählten Kundenkreis eine „fast geschenkte“ Kaffeemaschine mit dem Zusatz: „Der Kaufvertrag kommt zustande, wenn Sie die Maschine nicht binnen 2 Wochen zurücksenden.“

Das Schweigen stellt grundsätzlich keine Willenserklärung dar. Wer schweigt, erklärt nichts, gibt also auch keine Willenserklärung ab. Die Erklärung ist das Gegenteil des Schweigens; es ist keine Äußerung. Insofern können wir als Grundregel feststellen: Wer ein Vertragsangebot erhält und schweigt, gibt keine Annahmeerklärung ab. Der Vertrag kommt also nicht zustande. Im vorstehenden Beispiel kommt daher ein Kaufvertrag auch dann nicht zustande, wenn der Empfänger der Kaffeemaschine diese nach 2 Wochen nicht zurücksendet. Dementsprechend braucht er sie auch nicht zu bezahlen.

Etwas anderes gilt aber dann, wenn die Parteien Entsprechendes vereinbart haben. Verabredet ein Kunde mit seinem Buchhändler, dass dieser ihm regelmäßig alle Neuerscheinungen zum Thema „Die Vollwerternährung“ zuschickt und er zur Zahlung nur verpflichtet ist, wenn er das Buch nicht binnen 2 Wochen zurückschickt, so ist in dem Schweigen des Kunden die Abgabe der folgenden Willenserklärung zu sehen: „Ich nehme das Angebot zum Abschluss eines Kaufvertrages über das Buch an.“

Zwei weitere Ausnahmen finden sich in der Regelung des § 362 Abs. 1 HGB und des § 416 BGB. Der Gesetzgeber stellt hier auf Besonderheiten des Handelsverkehrs bzw. des Hypothekenrechtes ab und fingiert unter bestimmten engen Voraussetzungen die Annahmeerklärung des Kaufmanns bzw. eine Genehmigung durch Schweigen. Umgekehrt gibt es auch den Fall, dass ein Schweigen als Ablehnung gilt, so in § 108 Abs. 2 a. E., worauf wir bald zurückkommen werden.

Das Wirksamwerden der Willenserklärung (Zugang)

Nunmehr stellt sich die Frage, wann eine Willenserklärung, wie z.B. das Angebot zum Abschluss eines Kaufvertrages oder die Kündigung des Arbeitgebers, die mit ihr bezweckte Rechtsfolge denn nun eigentlich herbeiführt, wann sie also rechtlich existent, d.h. auf Juristendeutsch „wirksam“ wird. Die entscheidende Vorschrift, die darüber (leider nur sehr lückenhaft) Auskunft gibt, ist § 130 Abs. 1 S. 1. Lesen Sie sie gewissenhaft durch.

Folgender Inhalt lässt sich ihr entlocken:

§ 130 Abs. 1 S. 1 weist zwei Begriffe auf, nämlich „Abgabe“ und „Zugang“.

§ 130 Abs. 1 S. 1 regelt nur den Fall, dass die Willenserklärung unter Abwesenden („… in dessen Abwesenheit …“) abgegeben wird; für ein Wirksamwerden durch Zugang unter Anwesenden enthält sie keine Regelung.

§ 130 Abs. 1 S. 1 gilt nur für empfangsbedürftige Willenserklärungen („…, die einem anderen gegenüber abzugeben ist, …“), also für Willenserklärungen mit einem Erklärungsempfänger; für nichtempfangsbedürftige Willenserklärungen, z.B. § 1937 (Testament), also Willenserklärungen ohne Erklärungsempfänger, schweigt die Vorschrift.

§ 130 Abs. 1 S. 1 trifft keine Aussage über unterschiedliche Wirksamkeitsvoraussetzungen bei verkörperten Willenserklärungen (der Erklärungsinhalt ist auf Dauer fixiert, d.h. schriftlich) und nicht verkörperten Willenserklärungen (der Erklärungsinhalt ist nicht fixiert, d.h. Wort, Handzeichen, Nicken).

§ 130 Abs. 1 S. 1 lässt die entscheidende Frage, was denn nun eine „Abgabe“ und was ein „Zugang“ sein sollen, völlig ungeklärt.

Der Gesetzgeber hat wieder einmal, wie man den fünf Punkten unschwer entnehmen kann, den Eintritt einer Willenserklärung in ihre juristische Welt mehr als geheimnisvoll normiert.

Vielleicht hilft zunächst wieder einmal ein Baumdiagramm als Überblick weiter.

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Bei der Abgabe einer Willenserklärung wollen wir uns kurz fassen. Eine Willenserklärung ist abgegeben, wenn der rechtsgeschäftliche Wille so geäußert ist, dass an der Ernsthaftigkeit und Endgültigkeit kein Zweifel besteht und die Erklärung mit Wille des Erklärenden in den Verkehr gebracht worden ist.

Beim Wirksamwerden einer Willenserklärung wird es schwieriger. Sie sehen sofort auf einen Blick, dass die Anforderungen an das Wirksamwerden einer Willenserklärung von drei sehr wesentlichen Unterscheidungen abhängig sind, nämlich davon,

  • ob die Willenserklärung erstens empfangsbedürftig oder ausnahmsweise nicht empfangsbedürftig ist,

  • zweitens verkörpert, also schriftlich fixiert oder nicht verkörpert ist und

  • drittens, ob sie gegenüber Anwesenden oder Abwesenden erfolgt.

Die empfangsbedürftige Willenserklärung

Die wichtigsten Willenserklärungen sind empfangsbedürftig. Das bedeutet, dass sie nicht schon mit der Abgabe, sondern erst dann wirksam werden, wenn der andere Teil sie empfängt. So sind die beiden „Renner“ unter den Willenserklärungen, nämlich die den Vertrag bildenden Bestandteile Angebot und Annahme, grundsätzlich empfangsbedürftige Willenserklärungen. Dies ergibt sich für das Angebot ausdrücklich aus § 145 („einem anderen“) und für die Annahme aus § 146 („diesem gegenüber“).

Der Grund für dieses Erfordernis der „Empfängnis“ liegt in der Natur der Sache:

Da die Willenserklärung als wesentlicher Bestandteil eines Rechtsgeschäftes regelmäßig eine bestimmte andere Person (wie z.B. eben den Vertragspartner) betrifft, soll sie erst wirksam werden, wenn dieser als Empfänger der gesendeten Willenserklärung von ihr Kenntnis nehmen kann.

Das gilt auch dann, wenn die Willenserklärung nicht Bestandteil eines zweiseitigen, vielmehr Bestandteil eines einseitigen empfangsbedürftigen Rechtsgeschäftes ist. Die Kündigung eines Mietvertrages durch den Vermieter oder die Kündigung eines Arbeitsvertrages durch den Arbeitgeber wird erst mit dem jeweiligen Empfang der Kündigungserklärung durch den Mieter oder Arbeitnehmer wirksam.

Die empfangsbedürftige Willenserklärung muss nun gerade von dem anderen Teil empfangen worden sein. Damit ist derjenige gemeint, an den sich die Willenserklärung richtet, der sogenannte richtige Adressat. Nicht genügend wäre es, wenn der Erklärende die Willenserklärung lediglich anderen unbeteiligten Personen mitteilte. Der Mietvertrag kommt nicht dadurch zustande, dass Herr Müller seiner Frau gegenüber erklärt, er akzeptiere das Angebot des Vermieters. Frau Müller mag zwar von der Willenserklärung betroffen sein, diese richtet sich jedoch als Vertragserklärung an den Vermieter und wird damit erst mit Empfang durch diesen wirksam. Die Kündigung eines Arbeitsvertrages ist nicht schon dann wirksam, wenn der Chef zum Abteilungsleiter Müller sagt: „Ich feuere den Schmitz!“

Die nichtempfangsbedürftige Willenserklärung

In seltenen Fällen ist die Willenserklärung nicht empfangsbedürftig. Dabei handelt es sich in aller Regel um Willenserklärungen, die Bestandteil einseitiger Rechtsgeschäfte sind und bei denen eine Bindungswirkung für den Erklärenden bestehen soll, auch ohne dass seine Erklärung einer bestimmten Person zugeht. Beispiele sind etwa das Testament (§ 1937) und die Auslobung (§ 657). Solche Willenserklärungen werden schon dann wirksam, wenn der Erklärende sie – in aller Regel schriftlich – so artikuliert hat, dass ein objektiver Beobachter sie als abgegeben ansieht. Der Erblasser legt z.B. das unterschriebene Testament in seine Schublade oder der Auslobende setzt die Belohnung durch Bekanntmachung in der Presse, auf Litfasssäulen oder durch Postwurfsendungen aus.

Die verkörperte und die nichtverkörperte Willenserklärung

Verkörpert ist eine Willenserklärung, wenn sie auf einem greifbaren Material fixiert, also niedergelegt ist. Die Willenserklärung ist dann durch die Fixierung „verkörpert“. Die nicht verkörperte Willenserklärung ist demgegenüber der gesprochene Satz oder die konkludente Handlung (Nicken, Zwinkern oder andere Arten des nonverbalen Zeichengebens).

Die Willenserklärung gegenüber Abwesenden

Nunmehr stoßen wir auf eine weitere wichtige Unterscheidung, nämlich die Frage, ob die empfangsbedürftige Willenserklärung gegenüber einem „anwesenden“ oder einem „abwesenden“ Empfänger abgegeben wird. Dabei ist unter einem „anwesenden“ derjenige Empfänger zu verstehen, der sich unmittelbar bei dem Erklärenden am gleichen Ort zur gleichen Zeit, also in dessen Hör- oder Sichtweite, befindet. Demgegenüber ist ein abwesender Empfänger derjenige, der sich nicht am gleichen Ort zur gleichen Zeit befindet, zu dem also kein unmittelbarer Kontakt besteht, sondern erst zusätzlich hergestellt werden muss, z.B. durch Absenden eines Briefes, eines Faxschreibens, einer E-Mail oder Entsendung eines Boten.

Juristisch am interessantesten ist dabei das Wirksamwerden der Willenserklärung gegenüber einem Abwesenden, mit dem wir uns daher zunächst befassen wollen.

Der Gesetzgeber hat dieses, und nur dieses (!) Problem in § 130 Abs. 1 S. 1 geregelt. Nach dieser Vorschrift wird die einem Abwesenden gegenüber abzugebende – also „empfangsbedürftige“ – Willenserklärung wirksam, wenn sie ihm zugeht. – Was heißt aber „zugeht“? Der Begriff des Zugangs ist von Rechtsprechung und Rechtswissenschaft definiert worden. Diese Definition ist wichtig; sie lautet:

Eine Willenserklärung ist zugegangen, wenn sie so in den Machtbereich des Empfängers gelangt ist, dass unter Zugrundelegung normaler Umstände mit der Möglichkeit ihrer Kenntnisnahme gerechnet werden kann.

Es ist also zunächst einmal erforderlich, dass die Willenserklärung in den sogenannten Machtbereich des Empfängers gelangt. Wegen dieses schönen Wortes „Machtbereich“ nennt man diese Konstruktion auch „Machtbereichstheorie“. Der Brief wird also z.B. in den Briefkasten eingeworfen; der Bote erreicht das Haus des Empfängers; der Anrufbeantworter des Empfängers zeichnet die gesprochene Erklärung auf; E-Mails gehen im Empfangsbriefkasten des Providers ein; das Kündigungsschreiben wird unter der Tür durchgeschoben.

Das Gelangen in den Herrschaftsbereich des Empfängers muss weiterhin so geschehen, dass der Empfänger von der Willenserklärung Kenntnis nehmen kann, also die „Möglichkeit“ der Kenntnisnahme hat.

Es mag zunächst überraschen, dass die Definition nicht die tatsächliche Kenntnisnahme durch den Empfänger als Zugangsvoraussetzung aufstellt, weil doch nur dadurch gewährleistet ist, dass der Empfänger von der Willenserklärung wirklich Kenntnis genommen hat. Der Grund hierfür wird aber ohne weiteres ersichtlich, wenn Sie sich folgenden Fall klarmachen:

Beispiel: Vermieter V möchte seinem Mieter M kündigen. Laut Mietvertrag ist eine Kündigung des Mietvertrages mit einer Frist von einem Monat zum Quartalsende möglich. Am Abend des 30.11. – etwa gegen 19.00 Uhr – wirft V seinen Kündigungsbrief in den Briefkasten des M. Der Briefkasten wird wie üblich am nächsten Morgen geleert. Da M eine Geschäftsreise unternehmen muss, legt er die Post ungeöffnet auf seinen Schreibtisch. Nach seiner Rückkehr am 3.12. kommt er erst dazu, den Brief des V zu lesen. Ist die Kündigung zum 31.12. oder erst zum 31.3. des nächsten Jahres wirksam?

Gem. § 130 Abs. 1 S. 1 wird eine Willenserklärung unter Abwesenden wirksam mit Zugang. Die Kündigungserklärung des V müsste dem M also spätestens am 30.11. zugegangen sein, um zum 31.12. wirksam zu werden. Es kommt mithin darauf an, welcher Zeitpunkt als Zugang der Willenserklärung anzusehen ist:

  • der Zeitpunkt, zu dem M das Schreiben tatsächlich gelesen hat, also der 3.12.,

  • der Zeitpunkt, zu dem M den Brief dem Briefkasten entnommen und ihn auf seinen Schreibtisch gelegt hat, also der 1.12.,

  • der Zeitpunkt, zu dem V den Brief in den Briefkasten des M geworfen hat, also der 30.11. um 19.00 Uhr.

Das Gesetz schweigt! Also ist das Tatbestandsmerkmal „Zugang“ durch Auslegung zu ermitteln, hier mit der teleologischen Auslegungsmethode (vgl. „Juristische Entdeckungen – Bd. I“). Was würde passieren, wenn man für den „Zugang“ die tatsächliche Kenntnisnahme voraussetzen würde? Der Empfänger hätte es in der Hand, durch bloße Nichtkenntnisnahme (Liegenlassen, Zerreißen) das Wirksamwerden der Willenserklärung zu verhindern. Und was würde passieren, wenn man für den „Zugang“ nur das tatsächliche Ankommen der Willenserklärung im Machtbereich des Empfängers ausreichen lassen würde? Dann hätte es der Erklärende in der Hand, dem Empfänger eine Willenserklärung wirksam zugehen zu lassen, ohne dass dieser unter normalen Umständen davon Kenntnis nehmen kann. Am 30.11. gegen 19.00 Uhr leert ein normaler Mensch unter normalen Umständen eben keinen Briefkasten!!

Mit der „Machtbereichstheorie“ werden nun die Interessen des Empfängers und des Erklärenden angemessen gewichtet, abgewogen und gleichermaßen berücksichtigt, so dass jeder von beiden die Risiken innerhalb seiner Wirkungssphäre zu verantworten hat. Wann jeweils diese Definition des Zugangs erfüllt ist, hängt von den Umständen des Einzelfalles ab.

Beispiele: Wird der eine Willenserklärung enthaltende Brief von dem Postboten in den Briefkasten des Empfängers eingeworfen, so ist sie dem Empfänger zugegangen, weil sie in seinen Machtbereich gelangt ist und er Gelegenheit hat, von dem Brief Kenntnis zu nehmen. Wird ein Brief von einem Boten der Ehefrau des Empfängers mit der Bitte übermittelt, diesen am Abend sofort dem Empfänger vorzulegen, so ist er mit der Übergabe an die Ehefrau zugegangen. Anders ist es, wenn der Bote den Brief im Laufe des Vormittags dem 5-jährigen Sohn des Empfängers mit der Bitte übergibt, ihn „abends dem Papa“ zu geben, weil bei einem 5-Jährigen nicht mit der zuverlässigen Befolgung dieser Bitte gerechnet werden kann. Wirft ein Vermieter abends gegen 22 Uhr die schriftliche Kündigung in den Briefkasten des Mieters, so geht diese erst am nächsten Tage zu, weil vorher unter normalen Umständen nicht damit gerechnet werden kann, dass der Mieter noch in seinen Briefkasten schaut.

Die Willenserklärung gegenüber Anwesenden

Wann eine empfangsbedürftige Willenserklärung, die gegenüber einem Anwesenden abzugeben ist, wirksam wird, ist in § 130 Abs. 1 S. 1 nicht direkt geregelt, aber doch dem im Gesetz geregelten Fall des Zugangs unter Abwesenden sehr ähnlich. Und das ist ein typischer Anwendungsfall für eine Gesetzesanalogie: Also somit gem. § 130 Abs. 1 S. 1 analog auch mit Hilfe der „Machtbereichstheorie“. Man muss dabei allerdings unterscheiden zwischen dem Zugang einer verkörperten und dem Zugang einer nicht verkörperten Willenserklärung.

  • Die verkörperte Willenserklärung wird unter Anwesenden mit ihrer Übergabe an den Empfänger wirksam, also mit Besitzübergang gem. § 854. Von diesem Zeitpunkt an ist die Willenserklärung im „Machtbereich“ des Empfängers und er hat die Möglichkeit der Kenntnisnahme. Weigert sich der Empfänger eines Kündigungsschreibens unberechtigterweise, die Erklärung entgegenzunehmen, so ist sie trotzdem wirksam geworden – der Empfänger könnte sonst das Wirksamwerden von Willenserklärungen nach Belieben verhindern (Gedanke aus § 242). Er hatte die Möglichkeit der Kenntnisnahme. Punktum!

  • Die nicht verkörperte Willenserklärung wird wirksam mit der Möglichkeit der Wahrnehmung durch den Empfänger mit dem Ohr. Das gilt auch dann, wenn dieser die Willenserklärung falsch aufgenommen, sich also z.B. verhört hat. Die Willenserklärung wird mit dem Inhalt wirksam, den ein verständiger Hörer, der sich nicht irrt, ihr beimessen musste. Das ist in aller Regel der Inhalt, den der Erklärende ihr gegeben hat. Wenn im Laden der Verkäufer den Preis von „17,40 €“ nennt, der Kunde „14,70 €“ versteht, dann lautet das Angebot des Verkäufers trotzdem auf „17,40 €“. Akzeptiert jetzt der Kunde das Angebot – z.B. durch Einpacken der Ware (schlüssiges Handeln) –, so muss er 17,40 € bezahlen, weil dann zu diesem Preis der Kaufvertrag zustande gekommen ist. Allerdings kann sich der Kunde von diesem Vertrag wieder lösen, weil er sich über die Höhe des Kaufpreises geirrt hat (Probleme der Anfechtung kommen später!).

  • Die durch eine technische Einrichtung von Person zu Person übermittelte Willenserklärung

Gibt jemand am Telefon oder in einer Videokonferenz oder im Chat eine Willenserklärung ab, so handelt es sich einerseits um eine Willenserklärung unter Abwesenden, weil sich Erklärender und Empfänger nicht zur gleichen Zeit am selben Ort befinden.

Da andererseits die Telefonleitung bzw. die technische Einrichtung die notwendige Verbindung für den Austausch mündlicher Erklärungen herstellt, ist die Situation für die hier interessierende Frage mit derjenigen gleichzusetzen, in der der Empfänger bei dem Erklärenden anwesend ist. Wie aus § 147 Abs. 1 S. 2 entnommen werden kann, gelten für die mittels technischer Einrichtungen abgegebenen Willenserklärungen die Grundsätze über das Wirksamwerden einer unverkörperten Willenserklärung gegenüber einem Anwesenden.

Mitteilungen über Fernschreiber, Fax oder E-Mails sind dagegen Erklärungen unter Abwesenden und gehen zu mit einem wirksamen Ausdruck beim Empfänger bzw. beim Erreichen des Providers.

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  4. Was ist, wenn die empfangsbedürftige einseitige Willenserklärung (z. B. Kündigung eines Mietvertrags) von dem Empfänger schriftlich zurückgewiesen wird? Bleibt sie dann trotzdem wirksam ?

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