Zustandekommen

Zustandekommen is a term from German civil law that describes the moment a contract or legal obligation comes into existence. It rests on the interaction of two legally relevant declarations of will: an offer (Angebot) and its acceptance (Annahme). In general, a contract is formed when an offer that is capable of binding and clearly defined is accepted by the other party in a timely and effective manner.

An offer is a declaration by which the offeror binds herself to conclude a contract on the stated terms, for example within a specified time or until revocation. Not every declaration constitutes an offer; advertisements or catalogues are usually considered invitations to treat rather than binding offers.

An acceptance is the declaration by the offeree that agrees to the terms of the offer. Acceptance can be explicit or can arise from conduct (konkludente Annahme). Acceptance must be communicated to the offeror and, unless the offer provides otherwise, be made within the time limit or within a reasonable period. The contract typically comes into existence at the moment the acceptance becomes effective and reaches (Zugang) the offeror.

Form requirements may influence Zustandekommen. Some contracts require a specific form (for example Schriftform or notarization) to be valid; others do not. In addition, offers can be revoked before acceptance, and certain circumstances can prevent Zustandekommen from occurring (for instance incapacity or illegality).

Once Zustandekommen occurs, the parties acquire binding rights and duties under the contract. If performance fails or is defective, remedies provided by the law may apply. In practice, electronic communications have largely integrated into traditional rules of offer and acceptance, but the fundamental concept remains the same.