fraudulent misrepresentations in b2b contract negotiations

• Applicant: Professorin Dr. Stefanie Jung
• Subject Area: Private Law
• Term: since 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 534291726

At first glance, the wording of § 123 para. 1, 1st alt. BGB (German Civil Code) seems to prove that fraudulent misrepresentations in contract negotiations that become causal for the contract conclusion are to be considered unlawful without exception. On the other hand, the negotiation literature regards certain lies outside the subject matter of performance and the price in the narrow sense as customary and not morally reprehensible. This applies, for example, to bluffs about deadlines or the reservation price. However, there is no case law on such "accepted" lies in the negotiation literature, nor are these deceptions critically reflected in the legal literature. The habilitation takes this as an opportunity to open a controversial and, at the same time, important discussion on the general unlawfulness of deceptions in b2b negotiations. In a comprehensive legal-historical, legal-dogmatic, legal-comparative, legal-economical, and empirical argumentation, the work proves that the comprehensive understanding of § 123 para. 1, 1st alt. BGB is not self-evident. In contrast to the historical role models and the rules of other jurisdictions, the work's central new idea is to differentiate according to what the negotiator lies about with regard to § 123 para. 1, 1st alt. BGB. The necessity of a legal consequence for deceptions can be proven in particular for lies about the object of performance, the price in the narrow sense, and the legal situation. However, this does not apply to misleading statements, e.g., about deadlines, alternative offers, or the reservation price. With regard to the justification of this differentiation according to what the negotiator lies about, an own worldwide conducted empirical study with more than 3,000 participants (judges, lawyers, professional negotiators) plays an important role. The results show that all groups differentiate according to the object of deception regarding their moral evaluation and their Rechtsgefühl (feeling for how the law should be). In addition, the results of the German judges are compelling, as they make clear that even they reject legal consequences concerning many different types of lies. Beyond the solution of the concrete legal question, the significance of the differentiation between morality and the Rechtsgefühl is demonstrated. In this respect, the work argues for a possible legal significance of the Rechtsgefühl instead of the "customs of the trade", which are enshrined in law but currently mostly ignored anyhow.

• DFG Programme: Publication Grants