Mandatory right
Statutory (including collective bargaining) regulations that can be deviated from by those subject to the standard, for example by changing or completely excluding them, are mandatory . Other terms for mandatory law are dispositive or disposable law, ius dispositivum or flexible law.
The opposite is the indispensable law , which cannot be changed by those affected by the law (not at their disposal).
The waiver can only exist in favor of or at the expense of one or more participants. It can be given for contracting parties, collective bargaining parties (collective bargaining disposition ) and / or company parties . It can - for example in labor law - be regulated in such a way that individual contracting parties can only deviate from a statutory regulation by referring to a (effectively) deviating collective agreement regulation.
meaning
As a rule, only provisions of civil law can be waived by the contracting parties. Mandatory law is the exception there. The reason for the fundamental dispositivity of civil law is the constitutionally guaranteed private autonomy . The public law is against essential.
In particular, numerous provisions of the law of obligations are essential . Here, the contracting parties face each other as equal partners. They should be able to regulate their private legal relationships as freely as possible. Since a consensus of the parties is necessary for the conclusion of a contract , according to the will of the BGB legislature at the end of the 19th century, a fair contract was to be achieved in this way . The idea is an expression of the liberal understanding of state and law that prevailed at the time .
In the course of the history of the BGB's validity, however, the conviction prevailed that the presented equality of the parties does not exist in legal reality. In many areas, especially in labor and tenancy law , there were and are economically unequal partners. Due to the unrestricted freedom of contract , no contractual justice could be created. In fact, the economically stronger part (e.g. landlord , employer ) dictated the terms of the contract to the economically weaker part ( tenant , employee ). A similar economic imbalance between entrepreneurs and consumers has been recognized in recent history .
In addition to the BGB, the General Terms and Conditions Act came into force in 1977 , which limited the waiver. The law of the general terms and conditions was then integrated into the BGB with the modernization of the law of obligations on January 1, 2002 ( Section 305 BGB ff.).
In order to get closer to the ideal of contractual justice, the legislature also introduced numerous provisions into contract law that are of mandatory character and therefore not indispensable. These serve to protect the economically weaker part (employees, tenants, consumers). Mandatory law regulations can therefore be found in particular in labor law, tenancy law and in all regulations that tend to protect consumers .
function
If the parties have not regulated a specific question in their contract, the dispositive right is used to fill this gap. The legislator regards the dispositive law as an appropriate substitute or framework order.
If the parties have made an individual agreement contrary to the legal regulation, it must be determined by interpreting the legal regulation whether this is mandatory or not. The mandatory character of a regulation results either from an express statutory order or from its tendency to protect the economically weaker part.
If general terms and conditions were included in the contract, the effectiveness of a provision that deviates from statutory law is assessed in accordance with Sections 305 ff. BGB. An individually negotiated contract may deviate to a greater extent from optional legal law than unilaterally pre-formulated contractual conditions. The limit, however, is always good morals ( § 138 BGB).
literature
- Lorenz Kähler : Concept and justification of mandatory law . Mohr Siebeck, 2012. ISBN 978-3-16-150718-2
- Werner Flume : General part of civil law. Volume two: The legal transaction . Springer Verlag, 4th edition 1992. ISBN 978-3-540-55211-6
- Hein D. Koetz : Dispositive Law and Supplementary Interpretation of Contracts (Default Rules and Supplementary Interpretation in the Law of Contract) . JuS 2013, pp. 289-296 = Max Planck Private Law Research Paper No. 13/2
Web links
Individual evidence
- ↑ OpinioIuris / Shajkovci : ius dispositivum , August 5, 2012
- ↑ Helmut Rüßmann : Mandatory law and dispositive law, introduction to law. Saarbrücken University , 1994
