Verbotene und sittenwidrige Rechtsgeschäfte

In diesem Kapitel wollen wir nun erörtern, in welchen Fällen ein Rechtsgeschäft wegen seines Inhalts nichtig ist. Auch wenn ein Rechtsgeschäft nämlich nach allen Regeln der Vertrags-, Form- und Willenserklärungskunst an sich wirksam wäre, kann ihm das Gesetz die Anerkennung immer noch verweigern.

Ähnlich wie eine bestimmte Form nur eingehalten werden muss, wenn sich dies – ausnahmsweise – aus dem Gesetz oder einer Vereinbarung ergibt, kommt eine Nichtigkeit von Rechtsgeschäften wegen deren Inhalts nur ausnahmsweise und in engen, durch das Gesetz abgesteckten Grenzen in Betracht.

Die an einem Rechtsgeschäft Beteiligten haben grundsätzlich die Möglichkeit, den Inhalt ihrer Vereinbarungen frei zu bestimmen. Das ergibt sich aus dem das BGB
– insbesondere das Schuldrecht – prägenden Prinzip der Vertragsfreiheit
(Privatautonomie), d.h. der Freiheit des einzelnen Bürgers, seine Lebensverhältnisse durch Vertrag eigenverantwortlich zu gestalten, mit wem auch immer und mit welchem Inhalt auch immer. Dieses Prinzip ist für das Rechtsleben von überragender Bedeutung. Es ermöglicht den Beteiligten insbesondere, die unterschiedlichsten Vereinbarungen, ausschließlich auf ihre Bedürfnisse ausgerichtet, wirksam zu treffen.

Um dieses Ziel erreichen zu können, besagt das Prinzip der Vertragsfreiheit folgerichtig weiter, dass ein z.B. schuldrechtlicher Vertrag (das Prinzip gilt auch in einigen anderen, später zu erörternden Rechtsgebieten) inhaltlich nicht notwendigerweise einem der im Gesetz vorgesehenen Vertragstypen des besonderen Schuldrechts des § 433 ff. entsprechen muss.

Beispiel: Anstelle eines Miet- oder eines Kaufvertrages über einen Pkw schließen V und K einen „Mietkaufvertrag“, wonach K das Auto über eine gewisse Zeit mietet und nach Zahlung des letzten Mietzinses für einen Restbetrag das Eigentum an dem Pkw erwirbt. Ein solcher Vertrag ist wirksam, obwohl er als Vertragstyp im Gesetz nicht vorgesehen ist. Bestünde diese Möglichkeit nicht, so wären V und K darauf angewiesen, entweder einen Kaufvertrag oder einen Mietvertrag abzuschließen, obwohl weder der eine noch der andere Vertragstyp vollständig ihrem übereinstimmenden Willen entspricht.

Der Vertragsfreiheit sind allerdings inhaltlich bestimmte gesetzliche Grenzen gesetzt, deren Nichteinhaltung zur Nichtigkeit des Rechtsgeschäftes führt und zwar dort, wo durch ihren Missbrauch höherrangige Prinzipien der Gerechtigkeit, der Sittlichkeit oder auch der Sozialstaatlichkeit verletzt werden. Das Gesetz kennt hierzu u.a. zwei Fallgruppen, nämlich:

      • die Nichtigkeit wegen Verstoßes gegen ein gesetzliches Verbot (§ 134)

      • die Nichtigkeit wegen Verstoßes gegen die guten Sitten (§ 138).

1. Der Verstoß gegen ein gesetzliches Verbot (§ 134 BGB)

Der Gesetzgeber hat in den verschiedensten Rechtsgebieten zur Regelung eines geordneten Zusammenlebens Verbote aufgestellt. Beispiele hierfür sind: Strafrechtliche Verbote nach dem Strafgesetzbuch, Verbote im Straßenverkehr nach dem Straßenverkehrsgesetz und der Straßenverkehrsordnung, Umweltbelastungsverbote, baupolizeiliche Verbote nach der Landesbauordnung, lebensmittelrechtliche Verbote, Einfuhr- und Erwerbsverbote nach dem Betäubungsmittelgesetz usw. usw. … Diese Verbote könnten ihre beabsichtigte Wirkung aber nicht entfalten, wenn es den Beteiligten im Rechtsverkehr uneingeschränkt möglich wäre, auf dem Gebiet des Privatrechtes wirksame Rechtsgeschäfte abzuschließen, die auf die Vornahme von verbotenen Handlungen gerichtet sind. Es würden sonst nämlich rechtsgeschäftliche Verpflichtungen des Einzelnen begründet, gegen gesetzliche Verbote zu verstoßen. Daraus folgt die Regel, dass solchen Erfüllungsansprüchen die Wirksamkeit zu versagen ist, anderenfalls ein unerträglicher Selbstwiderspruch der Rechtsordnung einträte.

Beispiel: Vereinbarte der rauschgiftabhängige A mit dem Dealer D, dass dieser ihm aus Amsterdam 100 Gramm Heroin mitbringen solle, so wäre – wenn diese Vereinbarung wirksam wäre – der D gegenüber dem A verpflichtet, eine Handlung vorzunehmen, durch die er sich strafbar machen würde. Die Einfuhr und Veräußerung von Betäubungsmitteln ist gem. § 29 BTMG (Betäubungsmittelgesetz) strafbewehrt. A müsste konsequenterweise sogar berechtigt sein, zur Durchsetzung seiner Rechte aus § 433 Abs. 1 gerichtliche Hilfe in Anspruch zu nehmen, durch die der D dann mit Hilfe der Gerichte zur Vornahme strafbarer Handlungen gezwungen würde. Klage, Urteil und dann Zwangsvollstreckung mit staatlicher Hilfe – absurd!

Aus diesen Gründen bestimmt § 134, dass

  • ein Rechtsgeschäft,

  • das gegen ein gesetzliches Verbot verstößt, grundsätzlich nichtig ist.

Die Vorschrift enthält allerdings die wichtige Einschränkung:

  • … wenn sich nicht aus dem Gesetz ein anderes ergibt.“

Damit ist gemeint, dass das Rechtsgeschäft entgegen dem eben entwickelten Gedanken trotz Verstoßes gegen ein Verbot doch wirksam ist, wenn sich dies aus dem Verbots-„Gesetz“ ergibt. Damit fällt die Entscheidung über die Nichtigkeit nicht in § 134, sondern in dem Verbotsgesetz. Durch dessen Auslegung ist zu entscheiden (Sinn und Zweck!), ob neben der angeordneten Sanktion Buße oder Strafe auch die privatrechtliche Nichtigkeit eintreten soll.

Ob diese Rechtsfolge – also die Wirksamkeit der Vereinbarung trotz Verstoßes gegen das Verbot – von dem das Verbot enthaltenden Gesetz gewollt ist, ergibt sich allerdings in den seltensten Fällen ausdrücklich aus dessen Wortlaut. Es muss vielmehr für die einzelnen gesetzlichen Verbote ermittelt werden, ob deren Sinn und Zweck eine Nichtigkeit von privatrechtlichen Vereinbarungen erfordert, die gegen das Verbot gerichtet sind.

Diese Abgrenzung kann sehr schwierig sein und hat für die verschiedenen, zumeist schon sehr lange bestehenden gesetzlichen Verbote in der Rechtsprechung zu einer umfangreichen Kasuistik, d.h. nach vielen Einzelfällen ausgerichteten Anzahl von Entscheidungen geführt. Dabei haben sich folgende Grundsätze als inzwischen gefestigte Rechtsprechung herausgebildet:

Das Verbot richtet sich gegen die Umstände des Rechtsgeschäfts

Handelt es sich bei dem Verbot lediglich um eine sogenannte Ordnungsvorschrift, so ist das gegen diese Bestimmung gerichtete Rechtsgeschäft regelmäßig wirksam.

Unter einer Ordnungsvorschrift ist in diesem Zusammenhang ein Verbot zu verstehen, das sich nicht gegen den Inhalt des Geschäftes, sondern gegen die Umstände seines Zustandekommens richtet.

Beispiel: An einem Montag ruft der Kunde K den Phonohändler H um 23.30 Uhr in dessen Geschäft an und einigt sich mit ihm über den Erwerb eines bestimmten Fernsehgerätes. Kann K später die Lieferung des Gerätes verlangen?

Hier liegt ein Verstoß gegen das Ladenschlussgesetz vor, das – jedenfalls derzeit noch – den Abschluss von Ladengeschäften nachts regelmäßig verbietet.

Dieses Gesetz will nicht den Rechtserfolg, nämlich den Verkauf von Sachen an sich verbieten, sondern lediglich – und zwar zum Schutze der Mitarbeiter des Händlers – verhindern, dass dies außerhalb der Ladenöffnungszeiten geschieht. Es liegt mithin eine bloße Ordnungsvorschrift vor, weswegen ein Verstoß nicht zur Nichtigkeit des Vertrags führt. K kann daher die Lieferung des Gerätes aus § 433 Abs. 1 verlangen.

Das Verbot richtet sich gegen den Inhalt des Rechtsgeschäfts

Handelt es sich demgegenüber um ein Verbot, das sich gegen den Inhalt des Geschäftes richtet – soll also der Rechtserfolg verhindert werden –, so ist weiter zu unterscheiden:

  • Ist das Verbot gegen beide Geschäftspartner gerichtet, so tritt regelmäßig Nichtigkeit ein.

Im obigen Dealer-Beispiel verstößt die Vereinbarung gegen § 29 BTMG. Diese Bestimmung verbietet u.a. die Veräußerung und den Erwerb von Betäubungsmitteln wie Heroin. Es liegt damit ein Verbot vor, das sich gegen den Inhalt des Geschäftes richtet. Weiter betrifft es sowohl den Verkäufer wie den Käufer. Aus diesem Grunde ist das Geschäft gem. § 134 nichtig, so dass G kein Anspruch auf Lieferung des Heroins aus § 433 Abs. 1 zusteht.

  • Ist das Verbot lediglich gegen einen der Vertragspartner gerichtet, so ist das Rechtsgeschäft grundsätzlich wirksam.

Bei den Verkaufsverhandlungen behauptet der Verkäufer V wahrheitswidrig, das angebotene Bild sei ein echter, handsignierter Farbdruck von Chagall. Tatsächlich handelt es sich – was V auch weiß – um eine Fälschung. K kauft das Bild. Ist ein Vertrag wirksam zustande gekommen?

Hier liegt in dem Verkauf des Bildes von V an K ein Betrug (§ 263 StGB) vor. Es handelt sich dabei um ein Verbotsgesetz, das gegen den Inhalt des Geschäftes (Verkauf unter Täuschung des Käufers) gerichtet ist. Dennoch ist das Geschäft nicht nichtig, weil sich das Verbot nur gegen den Verkäufer und nicht auch gegen den Käufer richtet. Dass das Ergebnis so richtig ist, beweisen auch die §§ 123, 142: Der Käufer hat die Möglichkeit, sich von dem zunächst wirksamen Vertrag durch Anfechtung wieder zu lösen – was er tun kann, aber nicht tun muss.

Mehr als diese knappe Systematik, deren Anwendung im Einzelfall immer noch erhebliche Auslegungsprobleme enthalten kann (wann richtet sich ein Verbot z.B. nur gegen einen Vertragspartner?), soll hier nicht vermittelt werden. Wenn Sie Appetit bekommen haben, nehmen Sie den „grauen Dicken“ (Palandt) zur Hand und fangen Sie an zu stöbern zu § 134!

Speziell zur Schwarzarbeit: Wegen der weitreichenden Bedeutung in der Praxis soll noch kurz auf die höchstrichterliche Rechtsprechung zu dem Problem der Schwarzarbeit eingegangen werden, bei der der Bundesgerichtshof die oben in Grundrissen skizzierte Systematik noch durch das zusätzliche Kriterium der Kenntnis weiter unterteilt hat.

Schwarzarbeit ist das Erbringen von Arbeitsleistungen u.a. dann, wenn eine durch § 14 der Gewerbeordnung vorgesehene Anzeige vor Beginn eines sog. stehenden Gewerbes bei der zuständigen Behörde nicht abgegeben worden ist und aus der Tätigkeit wirtschaftliche Vorteile in erheblichem Umfange gezogen werden (§ 1 Abs. 1 Nr. 2 des Gesetzes zur Bekämpfung der Schwarzarbeit). Der Bundesgerichtshof hat in seiner grundlegenden und lesenswerten Entscheidung (BGHZ 85, 39, 43) die Abgrenzungskriterien zu § 134 aufgegriffen und entschieden, dass Verträge, die gegen das Gesetz zur Bekämpfung der Schwarzarbeit verstoßen, grundsätzlich gem. § 134 nichtig seien. Diese Entscheidung stellt insbesondere darauf ab, dass sich das Verbotsgesetz gegen beide Vertragspartner richtet: In § 2 des Gesetzes ist nämlich auch die Beauftragung mit Schwarzarbeit verboten, und, wie die Verrichtung von Schwarzarbeit selbst, sogar als Ordnungswidrigkeit mit der Verhängung von erheblichem Bußgeld bedroht.

In einer späteren, in der Literatur umstrittenen Entscheidung (BGHZ 89, 369, 373) hat der BGH dann einschränkend entschieden, dass die Nichtigkeit nicht eintrete, wenn der Auftraggeber nicht gewusst habe, dass die Arbeit als Schwarzarbeit durchgeführt werde. Nur so könne den berechtigten Belangen des Auftraggebers, den der Gesetzgeber u.a. habe schützen wollen, hinreichend Rechnung getragen werden. Diese Begründung zielt auf eine gerade für den Fall der Schwarzarbeit überaus wichtige rechtliche Konsequenz aus der Entscheidung über die Wirksamkeit oder Nichtigkeit des Vertrages: Der Auftraggeber hat nämlich nur dann einen Anspruch z.B. auf Beseitigung von etwaigen Mängeln und Schäden an einem errichteten Gebäude (sog. Gewährleistungsansprüche), wenn der zugrunde liegende (Werk-)Vertrag wirksam ist.

Beispiel: Schneidet die in einem Friseursalon angestellte Friseuse Emma Schmitz nach Feierabend regelmäßig bei sich zu Hause gegen Entgelt den Nachbarinnen der näheren Umgebung die Haare, so kommen zwischen ihr und den Kundinnen keine wirksamen Verträge (§ 631)zustande. Es liegt nämlich ein – hier ohne nähere Begründung zu unterstellender – Verstoß gegen das Gesetz zur Bekämpfung der Schwarzarbeit vor, was die Kundinnen – zumindest in einer hierfür ausreichenden „Parallelwertung in der Laiensphäre“ – wussten. Letzteres ergibt sich aus den Umständen: Arbeit außerhalb des Friseursalons und nach Feierabend. Fühlt sich die „Kundin“ Gräfin Billa v. Chor am Weiler nach dem Schnitt völlig verunstaltet, so stehen ihr jedenfalls keine vertraglichen Gewährleistungsansprüche zu, da der Werkvertrag gem. § 134 nichtig ist.

Hat dagegen der Bauherr Jupp Schmitz nicht gewusst, dass die Maurerkolonne „schwarz“ arbeitet, bleibt der Vertrag wirksam und mögliche Gewährleistungsansprüche ihm erhalten.

Zum Umfang der Nichtigkeit

Ergibt die Auslegung des Verbotsgesetzes, dass das Rechtsgeschäft gem. § 134 nichtig ist, so erfasst diese Nichtigkeit aufgrund des Abstraktionsprinzips regelmäßig nur das Verpflichtungs- und nicht auch das Verfügungsgeschäft. Dies bedeutet, dass eine Verfügung, die aufgrund eines gesetzwidrigen und damit nichtigen Rechtsgeschäftes vorgenommen worden ist, wirksam ist. Der Verfügende hat jedoch regelmäßig aus § 812 Abs. 1 S. 1 einen Bereicherungsanspruch, weil die Verfügung ohne Rechtsgrund vorgenommen worden ist.

2. Der Verstoß gegen die guten Sitten (§ 138 BGB)

Der Fall des § 138 Abs. 1 BGB

Ein Rechtsgeschäft ist nach dem Wortlaut des § 138 Abs. 1 nichtig, wenn es „gegen die guten Sitten verstößt“.

Diese knappe Formulierung des Gesetzes lässt zwar erkennen, welcher Art von Rechtsgeschäften die Wirksamkeit verwehrt werden soll, ein brauchbares Abgrenzungskriterium stellt sie jedoch nicht dar. Schon das Reichsgericht hat sich um eine Definition des unbestimmten Rechtsbegriffes „gute Sitten“ bemüht und dabei den Grundsatz entwickelt, ein Rechtsgeschäft sei wegen Sittenwidrigkeit nichtig, wenn es gegen das „Anstandsgefühl aller billig und gerecht Denkenden“ verstoße (z.B. RGZ 80, 219, 221 – eine auch wegen ihres noch heute aktuell erscheinenden Sachverhaltes lesenswerte Entscheidung). Der BGH hat diese Definition übernommen (z.B. BGHZ 10, 228, 232). Auch sie bedarf näherer Erläuterung, wobei hier eine kurze Erörterung der wesentlichen Grundsätze genügen soll, während Ihnen zur Vertiefung die umfangreichen Darstellungen im „Palandt“ zu § 138 zur Verfügung stehen.

Die vorstehende Definition besagt zunächst, dass ein an den allgemein in der Bevölkerung vertretenen Anschauungen orientierter Maßstab über das sittlich zu Verwerfende zugrunde zu legen ist. Damit sind extreme, völlig aus dem Rahmen des Üblichen fallende Anschauungen Einzelner außer Betracht zu lassen. Weiter ergibt sich aus dieser Definition, dass die Beurteilung, ob ein Rechtsgeschäft sittenwidrig ist, im Laufe der Zeit dem Wandel der Anschauungen über sittliche Werte in der Gesellschaft unterliegt. Dies wird besonders deutlich im Zusammenhang mit der eventuellen Sittenwidrigkeit geschlechtlicher Beziehungen, gilt aber auch für andere Bereiche.

Während das Amtsgericht Emden (NJW 75, 1363, 1364) einen Beherbergungsvertrag mit zwei Verlobten über ein Doppelzimmer auf Borkum mit der Begründung für sittenwidrig erklärt hat, die Gäste seien nicht miteinander verheiratet, führt der BGH in seiner Entscheidung (NJW 85, 130, 131) aus, es lasse sich „eine allgemeine gültige Auffassung, wonach das Zusammenleben unverheirateter Personen gleichen
oder verschiedenen Geschlechts zu zweit in einer eheähnlichen Gemeinschaft oder zu mehreren in einer Wohngemeinschaft sittlich anstößig sei, heute nicht mehr feststellen.“ Oder schauen Sie doch mal in das neue Prostitutionsgesetz, das mit der jahrtausendalten Sittenwidrigkeit des sog. „Dirnenvertrages“ endgültig aufräumt. Der „älteste“ Vertrag der Welt im „ältesten“ Gewerbe der Welt ist jetzt gem. § 1 ProstG wirksam.

Vom Schutzzweck des § 138 Abs. 1 her gesehen lassen sich zwei Fallgruppen unterscheiden:

Fallgruppe 1: Zum einen kann die Sittenwidrigkeit in einer nicht zu billigenden Handlungsweise gerade gegenüber dem Geschäftspartner zu sehen sein.

Fallgruppe 2: Zum anderen können aber auch die Handlungen beider Geschäftspartner sittenwidrig sein, wenn die Interessen der Allgemeinheit oder Dritter in unzumutbarer Weise verletzt werden.

Zur Fallgruppe 1 gehören insbesondere die Fälle des Missbrauchs einer Macht- oder Monopolstellung, um dem anderen Teil unangemessene Vertragsbedingungen aufzuzwingen. Dies geschieht häufig durch sog. Knebelungsverträge, bei denen der Vertragspartner unangemessen in seiner Dispositionsfreiheit beschränkt wird.

Beispiel: Die Brauerei B-AG gewährt dem Gastwirt G zur Einrichtung einer neuen Gaststätte ein verzinsliches Darlehen über 100.000 €. Als Gegenleistung verpflichtet sich G, 25 Jahre lang mindestens 500 hl Pils oder Kölsch jährlich von der B-AG abzunehmen und kein Bier einer anderen Brauerei in seiner Gaststätte auszuschenken. Wirksam?

Wegen der langen Laufzeit wird der Gastwirt durch den Vertrag in seiner wirtschaftlichen Handlungsfreiheit in einer Weise eingeschränkt, die das Übliche in dieser Geschäftsbranche weit überschreitet. So kann G ein günstigeres Bierangebot auf dem Markt während der gesamten Laufzeit von 25 Jahren nicht wahrnehmen und muss zudem noch die Mindestabnahmepflicht erfüllen. Eine solche Verpflichtung kann für einen kürzeren Zeitraum an sich zwar durchaus eine angemessene Gegenleistung für ein (in solchen Fällen meist besonders günstiges) Darlehen sein. Das gilt aber nicht mehr, wenn die Laufzeit übermäßig weit ausgedehnt wird. Denn der Gastwirt kann die wirtschaftliche Entwicklung der Gaststätte für einen so langen Zeitraum nicht abschätzen und wird daher durch den Vertrag in eine unzumutbare Abhängigkeit gebracht, die auch durch besonders günstige Darlehenskonditionen nicht aufgewogen wird. Nach der umfangreichen Rechtsprechung des Bundesgerichtshofes zu diesen sog. Bierlieferungsverträgen (vgl. z.B. BGH NJW 85, 2693, 2695) ist deswegen ein solcher Vertrag mit einer Bezugsbindung über einen Zeitraum von mehr als 20 Jahren in aller Regel sittenwidrig und daher gem. § 138 Abs. 1 nichtig.

Bei einem so langen Zeitraum ist es nicht erforderlich, dass neben der Dauer auch noch weitere Kriterien auf eine nicht hinnehmbare Ausnutzung der wirtschaftlichen Übermacht des Vertragspartners hindeuten. Bei kürzerer Laufzeit wäre das demgegenüber anders: Es müssten dann alle weiteren Umstände des Einzelfalles zur Begutachtung herangezogen werden. Dabei können in derartigen Fällen z.B. in Frage kommen: Die Festlegung der Mindestabnahmemenge im Verhältnis zu dem zu erwartenden Umsatz, die Bedingungen für die Rückzahlung des Darlehens, die Zinshöhe und der Grad der Unerfahrenheit des Gastwirtes.

Eine solche Gesamtsicht aller Umstände, wie sie soeben im obigen Beispielsfall angesprochen wurde, ist in nahezu allen Fällen der Prüfung des § 138 anzustellen. Da diese jedoch in der täglichen Praxis nur sehr selten erforderlich wird, soll hier nicht weiter auf diese Problematik eingegangen werden.

Hingewiesen sei aus der ersten Fallgruppe noch auf die sog. Ratenkreditverträge, die nicht selten wegen Überteuerung als sittenwidrig anzusehen sind. Dabei handelt es sich um Kreditverträge, bei denen sich der Darlehensnehmer als Gegenleistung zu dem erhaltenen Kapital dazu verpflichtet, während eines festliegenden Zeitraumes monatlich eine bestimmte Summe zu erbringen („48 Monate lang 399 €“). In diesem Betrag sind Kapitalrückführung und Zinsen enthalten. Da die Höhe der Zinsen aus jenem Betrag ohne komplizierte mathematische Berechnung nicht zu ersehen ist, bietet dieser Kredittyp den Anbietern die Gelegenheit, unter Ausnutzung ihrer wirtschaftlichen Übermacht im Verhältnis zu dem Kreditnehmer für diesen wirtschaftlich besonders ungünstige Verträge abzuschließen. Näheres zu den Voraussetzungen, unter denen bei derartigen Verträgen Sittenwidrigkeit anzunehmen ist, sowie zur Methode der Berechnung der Zinsen, jeweils mit Hinweisen auf die umfangreiche Rechtsprechung, finden Sie im Palandt zu § 138.

Zur Fallgruppe 2 gehören die Fälle, in denen durch Vereinbarung der Beteiligten schützenswerte Vermögens- oder sonstige Interessen von Dritten oder der Allgemeinheit verletzt werden. Hierunter fällt z.B. die sog. Übersicherung von Krediten: Im Wirtschaftsleben werden Geschäftsbeziehungen regelmäßig im Vertrauen darauf aufgenommen, dass für die entstehenden Forderungen das Vermögen des Geschäftspartners als Haftungsmasse zur Verfügung steht. Verpfändet nun jemand einen Teil seines Vermögens zur Sicherheit etwa eines Kredites, so steht dieser Vermögensteil unter bestimmten Umständen (Einzelheiten dazu später) seinen übrigen Gläubigern nicht zur Verfügung. Aus diesem Grunde ist ein solches Geschäft regelmäßig sittenwidrig, wenn die gewährte Sicherheit im Verhältnis zu dem zugrunde liegenden Kredit übermäßig hoch ist (z.B. Kreditbetrag 100.000 €, verpfändetes Vermögen 2 Mio. €). Denn in solchen Fällen wird den übrigen Gläubigern ohne wirtschaftliche Notwendigkeit das haftende Vermögen entzogen.

Auch der folgende Beispielsfall gehört hier hin: Der gut verdienende A vereinbart mit seiner aus Gesundheitsgründen nicht mehr arbeitsfähigen nahezu vermögenslosen Ehefrau, von der er getrennt lebt, dass er ihr nach der bevorstehenden Scheidung einen Betrag von 100 € monatlich an Unterhalt zahlen werde. – Ist der Anspruch der Ehefrau dadurch wirksam auf 100 € beschränkt worden?

Gem. § 1585 c können Ehegatten über die Unterhaltspflicht für die Zeit nach der Scheidung Vereinbarungen treffen. Es soll ihnen damit ermöglicht werden, eine einverständliche Regelung über Art und Höhe des Unterhalts zu finden, die ihren Verhältnissen besser angepasst ist als die gesetzliche Unterhaltspflicht (siehe oben: Prinzip der Vertragsfreiheit). Nach dem Wortlaut des § 1585 c können die Eheleute also auch einen Vertrag wie im Beispielsfall schließen. Dies ginge jedoch zu Lasten der Verwandten der Ehefrau oder des Trägers der Sozialhilfe, weil diese dann anstelle des nach dem Gesetz an sich verpflichteten Ehemannes der bedürftigen Ehefrau aufgrund des § 1601 ff. bzw. der einschlägigen Bestimmungen des Sozialgesetzbuches Unterhalt zu leisten hätten.

Aus diesem Grunde kann nach der Rechtsprechung des BGH eine Unterhaltsvereinbarung, durch die „bewusst die Unterstützungsbedürftigkeit eines geschiedenen
Ehegatten zu Lasten der Sozialhilfe herbeigeführt wird“ den guten Sitten zuwider laufen und damit nichtig sein (vgl. BGHZ 86, 82, 88).

Diese Rechtsfolge tritt allerdings nicht immer ein, weil der Vereinbarung auch billigenswerte Motive zugrunde liegen können. Es ist daher – entsprechend den Ausführungen zur Fallgruppe 1 – „auf den aus der Zusammenfassung von Inhalt, Beweggrund und Zweck zu entnehmenden Gesamtcharakter“ der Vereinbarung abzustellen.

Im Zusammenhang mit dem letzten Beispielsfall, insbesondere den Ausführungen am Ende, ist noch auf folgenden wichtigen Grundsatz hinzuweisen: In all solchen Fällen, in denen erst die „Zusammenschau aller Umstände“ das Unwerturteil ergibt, tritt die Nichtigkeit nur ein, wenn derjenige, dessen Verhalten zu missbilligen ist, diese Umstände auch kannte. Im letzten Beispielsfall muss der Ehemann also gewusst haben, dass seine Ehefrau kein Vermögen mehr hat und nicht mehr arbeitsfähig ist.

Ein (weiteres) Beispiel für die sittenwidrige Schädigung nicht der Allgemeinheit, wohl aber eines Dritten liegt vor, wenn die Mannschaftskapitäne der Fußballvereine Vorwärts 04 und TUS 09 vereinbaren, im bevorstehenden Meisterschaftsspiel 0:0 gegeneinander zu spielen, um so ein Vorwärtskommen des Konkurrenzvereins VfL Eintracht in der Tabelle zu verhindern.

Der Fall des § 138 Abs. 2 BGB

Im § 138 Abs. 2 hat der Gesetzgeber eine weitere Fallgruppe der sittenwidrigen Rechtsgeschäfte, nämlich den sog. „Wucher“, besonders geregelt.

Trotz dieser ausdrücklichen gesetzlichen Regelung handelt es sich bei dem Wucher lediglich um einen Beispielsfall für den in § 138 Abs. 1 niedergelegten allgemeinen Grundsatz, was an der Eingangsformulierung „Nichtig ist insbesondere …“ deutlich wird. Aus diesem Grunde kann ein Rechtsgeschäft, das nicht alle Tatbestandsvoraussetzungen des in Betracht kommenden § 138 Abs. 2 erfüllt, durchaus trotzdem gem. § 138 Abs. 1 wegen Sittenwidrigkeit nichtig sein.

Dies mag an folgendem Fall erläutert werden, in dem Sie auch die Tatbestandsmerkmale kennen lernen werden.

Beispiel: Der abenteuerlustige 20-jährige A aus einer niederbayerischen Kleinstadt gerät an einem Wochenende in Hamburg-St. Pauli in ein Animierlokal. Während sich die dortigen „Damen“ um ihn „kümmern“, bestellt A, ohne sich für die angegebenen Preise zu interessieren, 4 Flaschen Champagner. Später weigert er sich, die Rechnung der „Lola“ von insgesamt 3.160 € für die Getränke zu bezahlen. Mit Recht?

Anspruchsgrundlage der „Lola“: § 433 Abs. 2, klar.

Der Vertrag über den Verkauf des Champagner für 790 € pro Flasche könnte aber gem. § 138 Abs. 2 als wucherisch und damit sittenwidrig anzusehen sein. Der Preis steht – jedenfalls bei der aus den Umständen zu unterstellenden schlichten Qualität des Getränkes – in einem „auffälligen Missverhältnis“ zu der von dem Betriebsinhaber erbrachten Leistung. Weiter müssten eine Zwangslage, die Unerfahrenheit, ein Mangel an Urteilsvermögen oder eine erhebliche Willensschwäche des A ausgebeutet worden sein.

In Betracht kommen insoweit die Ausnutzung der Unerfahrenheit und einer erheblichen Willensschwäche des A. Zur Unerfahrenheit würde es ausreichen, wenn ein ausführlicherer Sachverhalt ergäbe, dass A aufgrund seines jugendlichen Alters und seiner bisherigen Lebenserfahrung nicht damit rechnen konnte, dass für das Getränk solche Preise verlangt würden. Für die Ausnutzung einer erheblichen Willensschwäche wäre Voraussetzung, dass A zwar Inhalt und Folgen des Rechtsgeschäftes durchschaut hat, sich aber wegen einer verminderten psychischen Widerstandsfähigkeit – etwa infolge der Anfechtungen durch die dargebotenen weiblichen Reize – nicht sachgerecht zu verhalten vermochte.

Ergibt die Prüfung, dass keines dieser Merkmale bejaht werden kann, so ist noch zu untersuchen, ob nicht die Vertragsbeziehungen gegen das „Anstandsgefühl aller billig und gerecht Denkenden“ verstoßen und deswegen gem. § 138 Abs. 1 nichtig sind.

Das ist hier ohne weiteres zu bejahen, weil es mit dem allgemeinen Anstandsgefühl nicht zu vereinbaren ist, ein besonders hohes Entgelt für Getränke in einem Animierlokal deswegen zu fordern, weil die Gäste sich mit den vom Betriebsinhaber bereitgestellten Animierdamen betätigen können.

Zur Wirkung des Sittenverstoßes

Bei vorliegender Sittenwidrigkeit ist das Rechtsgeschäft nichtig (§ 138 Abs. 1). Die Nichtigkeit erfasst jedoch auch hier grundsätzlich nur das Verpflichtungsgeschäft und nicht auch das aufgrund des Abstraktionsprinzipes hiervon zu trennende Verfügungsgeschäft, weil die in der Verfügung liegende Änderung der Güterzuordnung regelmäßig an sich wertneutral ist. So ist z.B. im obigen Fall der überlangen Bierbezugsverpflichtung die Übereignung des Kreditbetrages wirksam, weil sie lediglich die Eigentumslage an dem Geld ändert, was für sich genommen mit dem Anstandsgefühl aller billig und gerecht Denkenden nicht unvereinbar ist.

Etwas anders gilt allerdings dann, wenn die Sittenwidrigkeit gerade in dem dinglichen Verfügungsgeschäft zum Ausdruck kommt. Ein Beispiel hierfür bildet der oben ange-sprochene Fall der Übersicherung: Gerade die dingliche Verfügung über den Vermögensteil schädigt die Gläubiger, weil sie auf diese Weise nicht ihrerseits darauf zurückgreifen können. Deswegen erfasst die Nichtigkeit in solchen Fällen auch das Verfügungsgeschäft.

Bei vorliegendem Wucher (§ 138 Abs. 2) sind beide Rechtsgeschäfte nichtig, da das Gesetz es so will: „… versprechen (Verpflichtungsgeschäft) oder gewähren (Verfügungsgeschäft) …“.

444 Gedanken zu „Verbotene und sittenwidrige Rechtsgeschäfte“

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