estoppel
noun · Verwirkung
No single German doctrine. The work the English estoppels do is scattered across § 242 BGB: venire contra factum proprium for blowing hot and cold, and Verwirkung, its special case, where a right sleeps too long and the other side has come to rely on it.
Which translation, when
Why
Estoppel has no German equivalent as a doctrine, because German law never grew the family of estoppels; it meets the same problems through the general clause of good faith. The various English estoppels, promissory, by representation, proprietary, all stop a party from asserting something because of what they earlier said or did. German law reaches this through § 242 BGB and its case-groups. The nearest general idea is venire contra factum proprium, the bar on contradicting one’s own prior conduct, which bites where the earlier conduct created a protected reliance in the other party. Its most used special case is Verwirkung, where a right is lost to enforcement because the holder let it lie for a long time, the Zeitmoment, and the obligor could rely on its no longer being raised, the Umstandsmoment, so the right survives but cannot be pressed. Neither maps cleanly onto a particular English estoppel: promissory estoppel turns on reliance on a promise, Verwirkung on delay plus reliance, and the overlap is only partial. So estoppel is best explained through the § 242 case-group in play, and rendering it flatly as Verwirkung narrows a broad doctrine to a single situation.
Typical mistakes
- Estoppel is not simply Verwirkung: Verwirkung is the delay-plus-reliance case, § 242 BGB, while a promissory or representation estoppel turns on reliance on what was said, so the flat rendering narrows the doctrine.
- German law has no unified estoppel; it works through § 242 BGB case-groups, venire contra factum proprium above all, so the right German idea depends on which estoppel is meant.
- Verwirkung bars enforcement but leaves the right in being, § 242 BGB, so it should not be read as extinguishing the right or as a limitation period, which is Verjährung.
What matters
Arguing that a counterparty who sat on a right for years cannot now enforce it against a German party: the German handle is Verwirkung under § 242 BGB, with its Zeitmoment and Umstandsmoment, not estoppel as a label. Where the point is reliance on a representation, venire contra factum proprium fits better, and the brief should name the case-group rather than the English word.
What the machine misses
Machine output renders estoppel as Verwirkung or leaves it untranslated, and Verwirkung is only one corner of the doctrine, the delay-plus-reliance case of § 242 BGB. A promissory or representation estoppel rendered as Verwirkung loses its ground in reliance on what was said, and the reader is left with a limitation-like idea rather than the broad § 242 bar on contradicting one’s own conduct.
Examples
| to be estopped from denying | nach Treu und Glauben an der Bestreitung gehindert sein |
| promissory estoppel | Bindung an ein Versprechen nach Treu und Glauben |
| the claim is barred by estoppel | der Anspruch ist verwirkt |
| estoppel by representation | Bindung an eine Erklärung nach Treu und Glauben |
More notes on these sections
good faith Treu und Glauben
fiduciary duty Treuepflicht
forbearance Stundung