Law of Germany: Difference between revisions
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{{cleanup-date|November 2005}} |
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The German law is the law, which is in force in the federal republic of Germany. |
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Note: the German law term is written in italics. |
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== characteristics == |
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== classification == |
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== private law == |
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The private law (''Privatrecht'') rules the relations between legal entities, which are both private (for example: buyer and seller, employer and employee, tenant and landlord) or – at least – acting on the same level as private persons (an authority buys its pencils from a private company). In contrast, whenever a state party is involved exercising official power, private law is not to be applied. |
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=== civil law === |
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The civil law (''Bürgerliches Recht'') determines the relationships between juristic persons, when no other law for special groups (like businesspeople or employees) exists. The most important law of that area is the civil law book (Bürgerliches Gesetzbuch, BGB). |
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The most important principle of the BGB is ''Privatautonomie''. That means that all citizens have the right to rule their own affairs without interference from the state, especially to dispose of their property according to their will and make contracts with the partners and with the contents they like. For that reason most of the rules in the BGB are only supplied in case that the partners of a contract did not make an agreement on that special point themselves. |
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Yet that principle is sometimes restricted by law for the sake of people, who could otherwise be put at disadvantage by their contract partners quite easily (for example minors, inexperienced buyers without special knowledge or people in a weak economic position). |
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==== general part ==== |
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The first one of the five parts of the BGB is headed ''Allgemeiner Teil'' (general part). It contains rules that are important for the other four parts of the BGB and for law in general, like provisions fuck spicks and niggars! adolf hitler is still alive and well in west palm beach california, validity and forms of contracts, proxy and regulations about time limits and limitations. |
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That technique to put rules, which are in force for other areas of law, into a general part is often used in whole German law and it is called ''Klammertechnik''. |
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The declaration of intention (''Willenserklärung'') is an expression of one´s will, which is connected with a certain legal consequence by law. It is a most important term in German law, for such declarations are the essential bricks of legal transactions or are legal transactions themselves. |
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According to §§ 133, 157 BGB declarations of will are to be interpreted from an objective point of view by a hypothetical neutral receiver in the same situation. For example: if a buyer demands a dozen apples and the seller agrees, they made a contract about twelve apples, even if either the buyer or the seller did not know, that a “dozen” is twelve and considered a dozen to be ten or twenty, because an objective receiver would interpret “dozen” as twelve. But there is one important exception: in case that both contract partners have the same wrong imagination of a certain term, that imagination becomes content of the contract. So if b both the buyer and the seller considered a “dozen” to be twenty, they make a contract about twenty apples, although that´s not the right meaning of the word. |
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To the validity of a declaration of will not only the expression of the will, but also delivery (''Abgabe'') and access (''Zugang'') are necessary. The notice must not only be written, but also brought to the post station and reach the receiver´s mailbox. The declaration of will comes not in force until the receiver has the possibility to read it. If one sends an email at 11 p.m to a company, it is not valid until the next morning when the company opens and the receiver can be expected to see in his mailbox. On the other hand if the receiver forgets to check his mails or is used to do that only one day per week the declaration has reached him at the moment when he can be expected to check his mails (usually every day) anyway. |
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It is possible that the content of a declaration of will does not correspond with the real will of someone, for example if he makes a mistake by filling a form or if he is threatened to sign a contract although not wanting to do so. |
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In those cases the declaration of will is valid nevertheless, yet the law gives the declarer the opportunity to contest his declaration (''Anfechtung'') because of six reasons: |
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* the declarer has been threatened to give his declaration (§ 123 BGB) |
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* the declarer has been deceived to give his declaration (§ 123 BGB) |
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* the declarer has made a mistake by declaring it (for example has written 1.000 instead of 100) |
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* the declarer has been in error concerning the meaning of his declaration (for example thought that the word “million” means 1.000.000.000 instead of 1.000.000) |
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* the declarer has been in error about important features of something (for example didn´t notice that the newspaper he has bought was from yesterday) (all according to § 119 BGB) |
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* someone, used by the declarer to bring his declaration to the receiver (for example the son is sent to the neighbours), made such a mistake (§ 120 BGB). |
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On the other hand he can not contest his declaration for other reasons like errors of motivation or calculation, so someone is bound to her purchase of a gift for her husband even if she did not meet his taste or later noticed that she cannot afford it. Note that if someone is directly forced to give a declaration, (for example if someone guides the hands of a person asleep to sign a contract), he cannot contest; with the declarer does not expressing any will such a happening is no declaration of will at all. |
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If the sender of the declaration contests it, the declaration is null and void (§ 142 BGB) and so is the whole legal transaction. But if he has contested because of his own error, the contester has to compensate his contract partner for the damage, which his partner has suffered by trusting in the validity of the declaration (§ 122 BGB). For example if someone has ordered “Die Buddenbrooks” instead of “Der Zauberberg” by mistake and contested his order, when the company delivers “Die Buddenbrooks”, he does not have to pay the price of the book, but has to pay the costs of delivering it. In case that it has been an unique exemplar of the book and the company has refused an offer by another buyer because of the unvalid contract with the contester, he has also to compensate the difference between the worth of the book and the price. But if the other buyer has offered to pay the double price the contester does not have to pay that difference, because his obligation to compensate the damage is bordered by the profit his contract partner would have made if his declaration has been remained valid. |
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A declaration of will can not only be given by saying something, but also by doing. If you go into a shop, take a bottle of water and put it on the cash desk taciturnly, you expresses your will to buy that bottle for the statet price. In some business situations it is even unimportant whether someone expresses a will verbally in contradiction to his behaviour. For example if someone stops his car on a public watched parking lot and leaves it, then go to the parking attendant and says that he does want neither his car to be watched nor pay the fee, the contract comes into existence nevertheless. The parking lot owner must protect the car and the driver later will have to pay for it. |
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Declarations of will are the bricks of legal transactions (''Rechtsgeschäft''). The BGB knows two types of such transactions: ''Verpflichtungsgeschäfte'' and ''Verfügungsgeschäfte''. |
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A ''Verpflichtungsgeschäft'' is a legal transaction by which someone obligates to do or not to do something, for example to deliver a car, to pay a rent or to lend a sum of money. ''Verpflichtungsgeschäfte'' are often contracts. ''Verfügungsgeschäfte'' on the other hand are legal transactions by which the status of a certain right is changed. For example if someone pays a price to the seller he changes the status of the right of property concerning that very sum of money: the right on that money is transferred from the buyer to the seller. So ''Verfügungsgeschäfte'' are used to fulfil the duties of ''Verpflichtungsgeschäfte'': by signing a contract the car-seller gets the duty to deliver a car (''Verpflichtungsgeschäft''), he fulfils his duty by transferring the property rights on the car from his assets to the assets of his contract partner (''Verfügungsgeschäft''). |
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Furthermore ''Verpflichtungsgeschäfte'' usually have a certain cause in law. The seller of the car doesn´t commit to delivering the car without a reason, the reason lies in the contract between him and the buyer, in the according duty of the buyer to pay the price. Consequently the contract is not valid when the reason is not clear. If someone obligates himself to give someone 100 Euros and the both are not in agreement whether the money is donated or lent, there is no contract. ''Verfügungsgeschäfte'' in contrast doesn´t have or need such a reason. It is unimportant why someone gives another one 100 Euros. The transfer is valid and the other one is the new owner of the money even if the giver gave the money just because of a contract, which is actually not valid. |
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It is important to divide both transactions strictly. The buyer does not become owner of the goods by signing the purchase contract, but when the goods are given to him by the seller. Such transactions often take place at the same point of time in every day life, for example at the bakers´. Yet there can be a big space of time between ''Verfügungsgeschäft'' and ''Verpflichtungsgeschäft'' when for example someone buys something, which has just been built abroad. In the meantime the seller is free to make another contract with anyone else and to deliver the goods to him, with the legal consequence that the second buyer becomes owner of them. |
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The most contracts come into existence with offer (''Angebot'') and acceptance (''Annahme''), both are declarations of will. An offer must include the basics of the offered legal transaction, for example who are the contract partners, what contract shall be made, what price shall be paid etc. It needs to be so precise that the other one can accept the offer with simple agreement. If he wants to accept the offer but with other features, a lower price for example, he has refused the offer and has made a new offer by himself the same time (§ 150 II BGB). If the receiver of the offer simply says nothing he has also refused the offer. On the other hand the giver of an offer is bound to it as long as the receiver has time to accept it (§ 145 BGB). Usually the receiver has to decide immediately whether to accept or not, but he can also be given a certain time limit to think about the contract (§ 148 BGB). |
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Those legal terms are obviously very abstract must be “translated” into real business life. So the jurist has to decide for example if the owner of a shop makes an offer by laying things into the shelves and putting prices on it or if the consumer makes the offer when he brings the goods to the cash desk to pay for it. That argument is quite important in case the shop owner or his employees had made a mistake in putting the prices, so that an expensive bottle of wine is assigned with only 4 Euros instead of 40. If the laying out of the goods are already an offer the shop owner is bound to it and has to purchase the bottle of wine for just 4 Euros. Nevertheless today most jurists are in agreement that the consumer makes the offer by bringing the goods to the counter desk. The laying out of things are only invitations to make an offer (invitationes ad offerendum), the same are advertisements in the media or window displays. Automats in contrast contain a real offer, so called offerte ad incertas personas (offer to unknown persons). The offer is to sell for example a cola to the given price under the condition that the automat is not yet empty. |
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To their validity some contracts need special forms. They are only a few rules about it, most of the contracts can be made with an oral agreement (such as a purchase at the butchers´). But often the contract partners decide to use special forms although their not demanded by law, especially for important contracts among strangers or continuing obligations. |
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The BGB knows five special forms above the oral contract to write down legal transactions: text form (''Textform'': any text readable, for example computer texts or faxes), scripture form (''Schriftform'': any durable written texts, for example signed purchase contracts), electronic form (the same as scripture form, but it is sufficient when the computer text is signed with a special electronic signature), notarial acts and contracts drawn up in public before a notary. If a contract is not drawn in the right form it is inane (§ 125) |
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Finally contracts can be void because they are in contradiction to a special compulsory prohibition according to § 134 BGB (for example an arms deal) or with the ''Gute Sitten'' (moralty) according to § 138 I BGB. |
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While the first condition is quite precise the term ''Gute Sitten'' is unprecisely and it is the task of jurisprudence and of the courts to fill such a term with content. Especially the following types of legal tansactions are generally acknowledged to be immoral (''sittenwidrig''): |
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* Contracts which would found the duty to do something condemned, for example to hire a killer or to bribe an official. |
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* Contracts which gag one partner in his freedom of business, for example a tenancy agreement of a bar which obligates the tenant to buy only the beer of one of the hirer´s brewery. |
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* Contracts whose conditions are unfair (very high prices for instance) because one of the partners has a monopoly. |
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* Contracts which have special rules to secure the creditor much better than other creditors of the debitor. For example if the debitor gets the duty to transfer all his claims against his own debitors which would he ever gain to his creditor. |
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* Legal tansactions which are in contradiction to the family order, for example contracts to “buy” a wife. |
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* Contracts which would put poor people in debt, they could never pay back; for example the bank gives the credit only in case the debitor´s son, who is economical dependent on this father, signs a debt guarantee, he could never pay back just for his father´s sake without own interest. |
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* Extreme disparity of benefit and consideration, when the contract partner is damnified with reprehensible disposition. |
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* Pyramid scheme |
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In additions to that also usury is ''sittenwidrig'' and for that reason inane (§ 138 II BGB). |
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Not everyone has the intellectual and emotional abilities to overview the consequences of his business behaviour. Such people are legally incapacitated (''geschäftsunfähig''). According to the law their declarations of will are null and void (§ 104 I BGB). They usually have proxies to do their business matters for them (parents for instance). Declarations of will, which are addressed to the legally incapacitated people (like cancellations) do not get valid with the access to them but to their proxies. |
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Legally incapacitated are especially minors and mentally ill people (§ 104 BGB), the rules about them are also applied for people who are not in control of their mind for some time because of being drunk for example (§ 105 II BGB). Yet incapacitated adults can make contracts of everyday life, which can be fulfilled at once (§ 105a BGB). For example a mad woman can buy appleS if she pays once. Yet if she get to know a second-hand car dealer on the market and buys four cars, such contract would not be valid even if he could pay them at once. |
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Legally incapacitated people are even protected in case their contract partners do not know about their incapacity. |
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Human beings between the age of 7 and 18 are limited in their legal capacity (§ 106 BGB) (''beschränkt geschäftsfähig''). First of all that means that they can declare only such intentions which are nothing but advantageous from a legal point of views (§ 107 BGB). For instance a minor can not buy a car, but accept the present of it. Note that the economical advantage of the legal transaction is not enough. If someone wants to sell a minor his car for 1 Euro, such a contract would be very advantageous for the minor from a financial point of view. Yet the child would acquire the duty to pay a certain (little) sum of money and that´s why the transaction would have a little legal disadvantage and the minor´s declaration of acceptance would be inane. |
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All other declarations of will need the consent of the parents (or other legal guardians) to become valid (§ 108 BGB). Until that time the contract partner of the child has to opportunity to recall his own declaration of will if he did not know that the minor has been under-age by declaring his will (§ 109 BGB). |
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§ 110 BGB makes an important exception: parents can give their child a certain sum of money (for example his pocket money) to consume it according to his will. Contracts which could be fulfilled with that money are valid. So if the minor gets 30 Euros each month she is able to buy all things cheaper than 30 Euros. |
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Furthermore the parents can give their consent to the child taking or job or running a business. In such case the minor has to right to do all legal transactions, which are in direct relationship to that matter, for example the trainee can buy working cloths while the under-age entrepreneur can hire employees and rent rooms (§ 112, 113 BGB). |
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Note that it is important to differentiate between ''Verpflichtungsgeschäft'' and ''Verfügungsgeschäft'' again. ''Verpflichtungsgeschäfte'' like purchase contracts etc. have usually legal disadvantages (the minor gets the legal duty to pay his sweets). For that reason they need the consent of the parents. But if someone offers to give the child a suit (maybe to fulfil a contract between them) the child can agree, because that ''Verfügungsgeschäft'' makes it legal owner of the suit without getting other duties (the duty to pay it has nothing to do with the ''Verfügungsgeschäft'', it derives from the contract, the ''Verpflichtungsgeschäft''). On the other hand, when the child is given the suit, it would loose his claim for it (because the purchase contract would be fulfilled). If the child makes the suit so dirty on his way home that the suit can not be cleaned anymore and becomes worthless for that reason, the children would remain the duty to pay for it. To avoid such solutions jurists are in agreement that a debt to a minor can not be fulfilled without consent of the parents. That means that the child can accept the given suit and becomes owner of it, but the contract is not fulfilled as long as the parents do not accredit that legal transaction. If they refuse to do so, for example because the suit has been lost, the seller of has to deliver a new suit to fulfil his contract duty. He can only get his suit back due to unjust enrichment which is impossible in that case for the suit isn´t in the possession of the child anymore. |
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== public law == |
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=== constitutional law === |
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=== criminal law === |
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== history == |
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== see also == |
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== links == |
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[[Category:German law|German law]] |
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Revision as of 08:56, 18 January 2006
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