After concluding a rental agreement, a landlord in the hypothetical case receives a notification that a previously submitted proof does not match the actual circumstances. The message sounds clear, but contains neither a precise time period nor a verifiable document. The landlord wants to declare the contract immediately invalid. Before doing so she must ascertain whether there is any ground for rescission at all.
Precisely determine the time frame of the alleged discrepancy
Put together the document actually received, the related enquiry and the reply given at the time. What was asserted at which point in time? Which newer information contradicts that statement exactly? A situation that changed after the contract was concluded is different from a statement that was already false at the time.
In the example the newer notice initially refers to a later period. This difference is explicitly recorded. The landlord leaves the original file unchanged and adds the new information as a separate document. The date of a suspicion should not be made to look afterwards like proof of a known deception.
Do not reduce the facts to the single word "false"
§ 123 BGB links rescission, among other things, to a declaration of intent having been induced by fraudulent misrepresentation. Different rules apply to deception by third parties. [B123] A single inconsistency therefore does not by itself resolve the entire assessment.
Legal counsel therefore receives several separate questions: What was actually incorrect? Which declaration or act is attributable to which person? What significance did it have for the conclusion? Was the underlying data collection or question in the specific application case permissible at all? This article does not assess any particular self-disclosure question and does not assert a general right to any desired personal information.
The landlord also describes her actual decision at the time. She does not invent in retrospect any selection criterion that does not emerge from the documents. In the hypothetical case it initially remains open whether the newer notice even concerns the earlier declaration.
Present the course of discovery in good time
§ 124 provides for a one-year period. In the case of fraudulent misrepresentation it begins with the discovery of the deception; the provision also contains a ten-year exclusion limit from the declaration. [B124] A specific end date is not calculated here.
Document when which information actually became known and what uncertainty still existed. Submit this chronology promptly for the deadline review. A late compilation of the documents should not be treated as a voluntarily chosen new starting point for the period. Whether the first message or only a later insight is legally relevant must be assessed concretely.
Examine rescission and its consequences as a separate task
According to § 143 rescission is made to the party against whom it is directed, in the case of a contract generally to the other contracting party. § 142 describes the nullity ab initio in the case of valid rescission. [B143, B142] What follows from this for a tenancy already commenced and its winding-up requires a separate legal assessment.
Rescission is therefore not a non-binding request to submit another proof. The landlord has the prerequisites, the declaration and the consequences examined together. This article does not draft a notice of rescission and does not decide any return or payment question.
In the hypothetical case the temporal discrepancy is clarified first. The result may dispel the suspicion or give rise to a solid need for further examination. What is crucial is a correct factual basis with a timely specialist decision. An outraged message alone does not replace it.