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'm in a new earth citizen

My very very best wishes today go to Hildesheim, where on Monday to 18:02 clock sees the light of a new Erdenbügerin world. The whole family seems to be K. happy, even if the mom today sounded a little tired on the phone. Click times on the link, then you see what is sweet!

Best regards from my half-packed life!

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With the construction contract to the notary?

Basically a construction contract is complete informal. It was enough to fix such in writing from him. If, however, the purchase of land to, then there are situations where even the building contract must be certified before a notary. The Federal Court in a decision of 22.07.2010 - offered advice when that is the case - VII ZR 246/08. Then the following conditions are checked:

- Make construction contract and land purchase contract a legal entity? If so, the construction contract is in need of certification.

When is against this legal entity?

- This is the case if the will of the parties linked both contracts in such a way that they should stand and fall together. It ranges that only one party can recognize this unit will and the other party accepts it or accepts (BGH, Judgement of 12.02.2009, VII ZR 230/07)

- The Federal Supreme Court clarified that a legal unit also then there can be,

• 
  
  if the building contract, the land purchase not covered, be
• 
  
  if the parties to the construction contract were not identical with those of the property purchase agreement,
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  if both contracts were not included in a document, but would be successively closed and
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  if in a contractual right of withdrawal was agreed.

- If both contracts are not mutually dependent, a certification is required for the construction contract may only be considered if the land transaction depends on the construction contract. Reason: In the dependence of the real estate purchase contract by another contract to the protective function to be achieved by requiring certification for real estate transactions, extend to the other party (BGH, Judgement of 12.02.2009, VII ZR 230/07)

- A link will between construction contract and land purchase contract must be all parties be present. This would be considered,

• 
  
  if the parties to the construction contract and the property purchase agreement are identical
• 
  
  or the developer significant influence on the implementation of the sales contract has. This often manifests itself in that the development on a particular plot should take place.

If the contractor has no influence on the implementation of the land purchase contract, specific circumstances exist which would allow to conclude the building contract was in need of certification.

was the case decided by the Supreme Court building owners a contractual right to withdraw was granted by the building contract, because they first had to acquire another property. This land acquisition failed. The contractor did not want to accept the resignation, interpreted the statement as a denunciation of the owners and made it work compensation claims, less costs saved from the construction contract claims. In that regard, it came to the question of whether the building contract was concluded without form, and thus effective or whether a certification was required. A cure form of a possible defect was not given. In a certification of need would be the construction contract under § 125 sentence 1 BGB void. The Supreme Court remanded the case for further proceedings and decision to the Court of Appeal. (Copyright ago)

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local reorganization


Next week Saturday is the rearrangement of my worldly possessions of Ghent Brugge to Ghent. I am firmly here, everything possible to organize, so this goes as smooth as possible.

Since Tuesday evening, all legally signed and sealed and I have a signed contract in my hands. As my new apartment is in a street where one or the other buildings with beer consumption possibilities, I was able to douse the new apartment and the same with a few colleagues randomly taken. (It should, however, during the week, some attention to the time ...).

Saturday it is then set to work and today I am already busy on the road moving boxes to fear, to order a car at the bank I was already to deposit a security deposit and now I've just come from the Hardware again, for a color transformation held in my new soft-pink bedroom I had planned. Point I would either do it tomorrow or Monday, because for this evening is (in Mulheim an der Ruhr) is a trip to Germany for the start of a new decade to celebrate. Strenuous weekends these days, but one is still young.

If I weighed and look forward to pictures of my new headquarters soon in this theater.

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Ecclesiastical labor versus European Human Rights Convention?

The European Court of Human Rights has today taken a decision (Beschwerde-Nr. 1620/03), which calls for dismissal of the Catholic Church for breach of loyalty obligations to think about.

The relevant facts are, according to the press release of the Court (No 688 of 23.09.2010) are as follows:

The complainant was "since the mid-1980s, the Catholic parish of St. Lambertus in Essen was organist and choir director made when he decided in 1994 by his wife separated. From 1995 on he lived with his new partner. After his children in kindergarten had said that Mr. Schüth be a father again, the dean of the community fürhte in July 1997 for an interview with him. A few days later said his dismissal from the church, with effect from April 1998 because he faced the fundamental order had failed the Catholic Church for the church service as part of church work conditions. While he was living outside of it concludes marriage with another woman he was expecting a child, he had committed not only adultery but also of bigamy guilty. "

The dismissal action was in all instances including the Federal Constitutional Court were unsuccessful. That court had argued that "the dean of the determination in the face of the Lord Schüth to keep his new relationship, I can reasonably assume that a warning was unnecessary. According to the court said the community had not Mr. Schüth without losing all credibility deal further, as its activities have been in close contact with the Church's mission. "Decided

The Court held that the German labor courts, the mutual interests would not be balanced in accordance with Article 8 of the European Convention on Human Rights Article 8 of the Convention provides:. "(1) Everyone has the right to respect for private and family life, home and his correspondence. (2) An authority shall in the exercise of this right except such as the Accordance with the law in a democratic society is necessary for national security or publicly known, for the economic welfare of the country, to maintain order, prevent crime, for the protection of health or morals or the protection of the rights and freedoms of others .

respondent in proceedings before the European Court of Human Rights, a State Party, here the Federal Republic of Germany (not the Catholic church) is. The complaint by the Court to weigh up the German labor courts. That court confined itself to stating that the complainant "as organist and choir director, not in the group of people fell to their termination was in the case of serious misconduct, necessarily, such as those in pastoral and clerical occupations and in managerial positions, but that his work yet so closely with the mission of Catholic Church was linked that they employ him could not further without losing all credibility. " That court has not elaborated this argument, but seemed merely the opinion of the Church's employer to have played in this matter. To have the labor courts, the de facto family life Schüth or protection of the Lord is not even mentioned. The interests of the Church's employer had not therefore be weighed against Mr Schüth right to respect for his private and family life, but only against his interest to preserve his job. A more thorough examination would be in balancing the competing rights and interests have been appropriate.

also went to the Court believes that the signing of the contract and the agreement of the loyalty obligation "not as a clear promise" could be understood in the case of separation or divorce abstemious life lead to .

Another argument was the Court that "have a religious employer terminated by a staff only limited opportunities to find a new job." This is particularly true if the dismissed employee has a specific qualification that will make it difficult or even impossible to find a new job outside the church.

The decision of the Court is not yet final. Within 3 months, the referral to the Grand Chamber shall be applied for.

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To the ruling in detail , you must have the written reasons to wait. It could be made only to the press release reference. But you'll just have to assume that not a church with reference to self-determination questioned blanket adoption of the Church's argument is no longer possible. The church's self-determination is not restricted. Only, the mutual interests to be balanced by the labor courts much more accurate and thorough. It is also conceivable that the treaty practice change and the value, but also the consequences of religious marriage is emphasized more clearly. Or the church comes to new solutions the urgent problem of the consequences of a state divorce. (Copyright ago)

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in child welfare relocation of one parent after divorce

If both parents after a divorce, joint custody of a child and wants the parent with whom the child lives (usually the mother), move far is, for the other parent, the question whether he has simply to accept this or whether he can do anything. Is the spatial distance between the parents in size, is also the visiting rights of children, the parent is not affected significantly. In addition, high costs incurred for the visits of the child.

The Supreme Court (decision of 28.04.2010 - XII ZB 81/09) had arisen in the appeal proceedings to deal with a case where the mother wanted to go with the child to Mexico. She wanted to join her boyfriend, who was situated very well economically. The child's father was against the move to Mexico because he substantial cuts in the relationship with his child and feared was the emigration of a risky design life of the mother. Both parents submitted applications for the transfer of the residence determination for the child. The mother needs the sole residence determination, so that they may transfer the child legally in foreign countries.

The court emphasized that the present standard for the decision residence determination is primarily the child's welfare. Then all other interests thereto, shall be measured. Factors in assessing the suitability of education of parents, the ties of the child to each parent, the principles of promotion and continuity as well as the child's will. All these criteria are weighted and evaluated. The mutual parental rights, as the emigration will be also included in the assessment. The motives for emigration are in principle decided not to review by the court. It can not prohibit the emigration, but has to examine how the migration affects the child's welfare. However, it is taken into account when considering, is whether a parent with the emigration (also) aims to prevent contact with the other parent. This is - as the Supreme Court -.'s Education into question the fitness motives of emigration are thus examined in relation to the child's well already, but not isolated from it. The need of the child after intensive contact with both parents should be included as an element of the child in the balance. It also had the scope to include the migration related harm and the consequences for the child and the parent.

The crucial question in weighing is after the Supreme Court whether to emigrate to the parent or the whereabouts of the child at further domestic resident parent is the child's welfare better solution. In decisions of great consequence, the Court can also request a psychological expert opinion, which could add to the quality of the bonds of the child with both parents and the eligible family court actions more narrow.

It is therefore a in many individual decision-oriented criteria necessary to bring out the child's welfare and protect them. The Supreme Court had finally also point out that for the case of transfer of residence provisions of the law to the mother of a binding contact arrangements must be made. Whether this can then be effectively implemented but if the child abroad is likely to be difficult. (Copyright ago)

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+ + + + + + NEWS FLASH

I have found a new apartment, more details will follow here, the days. Congratulations to me!

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damages for a tree angels and the sales tax

in charge of the construction law Seventh Senate of the Federal Court has its jurisdiction over the eligibility the sales tax on notional damages calculation - that is, when the defect eliminating do not actually - change (BGH VII ZR 176/09, Judgement of 22/07/2010) Although the Seventh Senate confirmed that the provision of. § 249 para 2 sentence 2 BGB to report on the sales tax is only as it occurs in fact, not directly applicable to the work of contract law as it applies to text and systematic status only in cases in to provide that compensation for damage to a thing. This is a contractual claim for damages for their failure to produce a work just not the case. But the Supreme Court is now on the reasoning of the legislature that led to the provision in § 249 para 2 sentence 2 BGB and sees it as an over-compensation if the customer in addition to the necessary remedial costs still would receive the sales tax, although the deficiencies are not corrected. The sales tax was only a transit item, not get the benefit of the remedial measures involved in its formation and depends on tax regulations. The customer is in his interests are not affected since the VAT is recoverable, if he had to actually pay, not getting reimbursed by the deduction. Nor can the customer when he initially did not intend to remedy the defect, in the event of an imminent statute of limitations of the claim for compensation, a determination to bring an action against the employer if he will retain the possibility, later still carry out the remedial measures.

The law, which in my post of 17 May 2010 is shown, after this decision of the Supreme Court no longer be maintained. (Copyright ago)

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dispute over the "eiPott"

Before the Hanseatic Higher Regional Court on 09/08/2010 is a dispute (5 84/10 W) was chosen, which shows once again that you should not decorate with borrowed plumes.

The defendant drove egg cup with the funny expression "eiPott. The applicant found the not so funny because it holds the Community word mark "IPOD" is. were protected with this stamp, "Apparatus and containers for household and kitchen". the products of the applicant, the known products include iPod, iPhone, iPad. The applicant requested an injunction against the defendant to cease - shortened words - use the label "eiPott" for the identification of egg cups. The Hamburg Higher Regional Court stated in its preamble (quoted in part) that:

"The defendant used the mark" eiPott "labeling standard for egg cup. It is an artificial word created from the words "egg" and "pot" - North German for pot - which is unusual for egg cup in the German language. ... Between the IPOD mark and the sign "eiPott" While there is no similarity of visual or conceptual level, but identity and aurally. ... True, the district court is assumed that it is the IPOD is a trademark in the Community (ie EU, the author) is well-known brand. This is at least for music players with all probability the case. ... The defendants use a phonetically identical marks that mark for a non-similar Goods, namely egg cup. "Also goes on the logical, used the defendant" by the obvious analogy of the products of the applicant, the distinctive character of the known community trademark of the applicant. "This was a regular illicit behavior. Nor is it by the artistic freedom justified the character.. (ie: "eiPott", the author) is based largely on the fact that the English pronunciation of "i" of the German brands iPod in a term with the prefix "ei" arises in Moreover, it resort to the term used in Northern Germany "pot" for pot and take advantage of the fact that in the German language two nouns - here "ei" and "pot" - can be virtually connected with each other. This is - as stated - a quite funny idea and you have to first come out, the Higher Regional Court of Hamburg.. But it said no but then a humorous or parodic engagement with the applicant and its products and put down on the exploitation of sound identity, so that the applicant had the property right to the trademark priority. Therefore, the defendant was prohibited from 'eiPott "the sign to an egg cup to use. (Copyright ago)