Failed performance and self-determination

December 20, 2021

Philipp Schlüter, Research Associate at the Max Planck Institute for Comparative and International Private Law, explores in his doctoral dissertation a systematized approach towards the unwinding of contracts. His foray into civil law theory addresses the mechanisms found in the German Civil Code (BGB) for unwinding contracts, in the process suggesting an orientation based on the assignment of rights.

The relationship between, on one hand, non-performance remedies and other mechanisms related to the unwinding of contracts as found in the BGB and, on the other, mechanisms for the safeguarding of transactions – such as rules on enforcement and execution, the principle of abstraction and contracts in rem – has thus far received minimal academic attention. For this reason, the systematic relationship between approaches towards the unwinding of contracts as well as their respective justifications remains subject to dispute.

The dissertation, for which Philipp Schlüter was awarded his doctorate from the Faculty of Law of the University of Freiburg in 2020, begins with an analysis of the substantive basis underlying the BGB’s procedure for unwinding contracts or performance. He shows that this basis is grounded in reconciling the discrepancies existing between the law of obligations and law of property, fields highly distinguished in the German legal system. Problem areas such as the BGB’s concept of nullity, the right of cancellation, and consumer revocation can be redefined on the basis of this understanding. In addition, he also makes a number of findings in respect of neuralgic “triangular cases” and also the “Saldotheorie” problem.

Philipp Schlüter, Rückabwicklung und Selbstbestimmung (Freiburger Rechtswissenschaftliche Abhandlungen, 28), Albert-Ludwigs-Universität Freiburg im Breisgau 2020, Tübingen 2021, PhD Thesis, XVIII + 464 pp.
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