(c)  German law35

of renunciation is found in a provision in the title on donation37 which ­stipulates that the right to revoke a donation on account of the ingrati­ tude of the donee can only be waived once the party entitled so to revoke becomes aware of the donee’s ingratitude. The provision does not, how­ ever, tells us what the nature of such waiver is. Again, the provision on the revocation of public offers of reward38 states that the right of the offeror to revoke the offer until performance occurs may be waived, without stating the nature of such a waiver. In this case, however, given that an offer of reward is conceived of as one of the few examples in the BGB of a genuine unilateral promise, it would seem to follow that the waiver of the right to revoke should also be conceived of as a type of unilateral juridical act, or legal transaction (Rechtsgeschäft) as the BGB puts it.

The most important provision on renunciation of rights in the BGB is however §397, the heading to which is somewhat obliquely translated in the official Federal Ministry of Justice English version of the BGB as ‘Forgiveness’, by which is meant the release of contractual debts. The provision provides that an obligation is terminated if, by contrac­ tual agreement of the parties, the creditor either releases the debtor or acknowledges that the debt does not exist. The two methods specified thus cover both the express release of a debtor and the release which is to be implied from the creditor’s statement that he no longer considers the debtor to be under the obligation. Both methods have the effect of ter­ minating the obligation in question, not simply of suspending the duty of performance temporarily, though there is no reason why contracting parties might not alternatively provide for such a temporary suspension by contactual agreement.

The wording of §397 appears, on the face of it, to be quite unequivocal as to the need for a contractual agreement, unlike the exceptional uni­ lateral method permitted in the case of the waiver of the right to revoke an offer of reward. As a contract is prescribed, then the ordinary rules on contractual formation will apply, including the default rule of the irrev­ ocable offer,39 something which provides the debtor with some oppor­ tunity to consider the renunciation offered before deciding whether or not to accept it.

It has, however, recently been argued by Kleinschmidt that the appar­ ent wording of the provision may not be as prescriptive as first appears to be the case, and that in practice the courts assume acceptance or simply

37 §533 BGB.    38  §658 BGB.    39  Discussed in Ch. 4, p. 217.