The colloquial term now deviates from this, so that "cheap" meanwhile stands for "inexpensive" or "cheap" and later got the connotations "low-priced" as well as "inferior" or "bad".
In the course of a worsening of meaning, the meaning of the adjective "cheap" changed to New High German only to "cheap". In contrast, the word “right and right” has a similar meaning.
In the German legal tradition, the concept of equity plays a prominent role, especially in civil law . Here, equity is a balance between performance and consideration . With equity, a legal system can do justice to justice in individual cases. Since in most cases the law only makes arrangements for the normal case, it must allow the case law in specific individual cases to supplement or correct the provisions taking into account aspects of equity. In German law, in addition to these general clauses , the second alternative is also implemented, in which the law even regulates individual cases, so that justice is already established by virtue of the law. Equity control is a case-by-case judicial control of contracts based on individual characteristics . Equity is a term that needs to be specified in the case law. As early as April 1901, the Reichsgericht (RG) considered it to be cheap, which corresponds to the opinion of all people who think cheaply and fairly and which balances or interests interests. The law mentions the concept of equity quite often, for example in , , , BGB or , ZPO .
Equity complements the written law to hardening to avoid or mitigate them. It is a case-by-case decision or situation law (comparable to situation ethics ). So equity is finely tuned and therefore more targeted justice . Equity requires an "examination and weighing of the objective economic interests (...) of the two contractual partners", so it is ultimately aimed at achieving justice in individual cases. The entitled person may not only pursue his own interests, but must also consider the interests of the contracting party in his consideration. The opposite of equity is inequity , an older word is inequity . It is a relationship between performance and consideration that contradicts justice and an intermediate stage between fair judgment and arbitrariness .
Since time immemorial, equity has been a supplement to the rigor of justice, so ius aequum is next to ius strictum . The term probably goes back to Aristotle (there epics ) in his Nicomachean ethics . In this he distanced himself from the teachings of Plato , which is also shown in the further development of the concept of equity. Aristotle distinguished this as a special legal form from his concept of justice. In particular, he introduced both as fundamentally different virtues , but does not want them to be understood as different attitudes . According to Aristotle, what is just beyond the written law is cheap. Already in 1837 it was valid: "Those who do not seek their advantage to the detriment of others and who do not want anything at all that could violate their rights or be restricted in other ways, act cheaply or fairly". The Latin expression for it Bonum et aequum , bono et aequo ( English good and equitable ) Good and equal (reasonable) comes from Roman civil law . The pair of terms is part of the civil law teaching of natural law .
In most sales contracts , the mutual performance (price and goods) is precisely specified in the contract, so that there is no room for questions of equity. In the case of some continuing obligations ( employment contracts , electricity and gas supply contracts , bank loans or investments with variable interest rates ), however, the price may change during the contract period due to market conditions, so that the price-determining provider unilaterally reserves the right to change prices at any time (price adjustments, price escalation clauses ). According to the right to determine the performance of (1) BGB, the price must then be determined by a contracting party at its reasonable discretion if no agreement has been reached on the framework within which the determination of the performance must be kept. This stipulation only becomes legally binding if it meets the equity requirements ( Paragraph 3 BGB), otherwise the discretion exercised by the provider will be checked by the courts. “Fair discretion” means that the contractual partner may only exercise his discretion when setting prices within the framework of a balanced relationship between performance and consideration. The exercise of discretion takes precedence over equity, that is, reasonable and fair pricing. It is a design leeway within the limits of reasonable and fair pricing. The aim of this examination is not to determine ex officio a fair price , but rather to determine to what extent the determination made is still within the limits of equity. "Fair discretion" linguistically allows a broad interpretation (with special emphasis on discretion) and also approaches for a restrictive interpretation (with regard to the requirement of "fair discretion").
According to the BGH , the regulation of BGB does not apply to electricity supply contracts because the energy supplier has no right of determination. If the tariff customer concludes an electricity supply contract with the energy supplier, this is concluded at the tariff that is currently valid and published in accordance with (1) sentence 1 EnWG . For this reason, according to the BGH, the direct application of "equitable discretion" is ruled out. According to the case law of the BGH, however, the provision of German Civil Code BGB) must be applied accordingly if the energy supplier has a monopoly position or the customer is subject to compulsory connection and use . If the tariff customer cannot change the electricity supplier because of a monopoly of his energy supplier or because of an obligation to connect or use it, changes in electricity prices are subject to judicial review.
In contrast, a corresponding application is ruled out if the gas customer has the opportunity to switch to another provider. General gas tariffs are not subject to a comprehensive equity control because the application of legislature to refrain from state regulation of general gas prices. In the case of unilateral tariff increases, this is different, because these may only be carried out by the supplier at reasonable discretion, which can be verified by a court. In principle, it is fair if the gas supplier's increased procurement costs are passed on to tariff customers. Inequity can exist if and to the extent that the increase in purchase costs is offset by falling costs in other areas.BGB would contradict the decision of the
If variable interest rates are charged for loans or financial investments , credit institutions may use the “ cheap discretion ” according to BGB; the Federal Court of Justice, however, requires that interest rate adjustment clauses in the lending business require the specification of the necessary calculation parameters. Here, as the reference interest rates of EURIBOR or LIBOR suitable.
When a bank in a form-type credit agreement unilaterally changing the borrowing rate reserves, so such a clause is basically to the effect to be construed that they only adapt (increase or decrease) of the contractual interest on capital market- induced changes in the refinancing s conditions of the bank according to BGB allows (see debit interest # refinancing-related interest rate change clauses ). Such a clause withstands judicial content control .
Maintaining an interest rate in spite of the significantly lower interest rate level is also a performance determination according to Para. 2 BGB (by omission ). An interest rate increase may be unreasonable if a bank has not passed on earlier reductions in the interest rate level.
In the case of cash investments with variable interest rates, the market interest rate is to be used; in the case of variable interest rates, the relative difference between the initial contractual interest rate and the reference interest rate must be maintained throughout the term of a savings plan .
Other areas of application
Forms of equity are also consumer protection regulations such as the general terms and conditions (AGB) according to BGB. In them it is determined through evaluation in individual cases that regulations that are so unusual for the weaker contractual partner (consumer) that he did not have to reckon with them are invalid. If the partner was otherwise inappropriately disadvantaged or if good faith was violated in any other way , a general terms and conditions clause can also be declared invalid by the judge. In terms of damage law, the compensation to be paid can remain below the amount of compensation required according to BGB for reasons of equity . In the law of enrichment and tort law (e.g. BGB) there are further specific norms that codify equity. In the field of public law that would or of the Works Constitution laws to name 1952 and the 1972nd In tax law , the different tax assessment for reasons of equity ( AO ) and the decree on equity ( AO) are examples of the concrete form of equity. In labor law is subject to issue instructions of the employer's also the equity requirements.
Equity as a principle of interpretation
Ever is generally in the interpretation of laws to determine the assumptions underlying natural justice and - well above the text of the law must be observed - out. Finally, the principle that law has to be “cheap” is used for legal development . Not least because of this general approach, proportionality as an important principle and the right to satisfaction were created.
Equity comes from the old German "biliden" or "bilethen" for equalize. The Duden understands this in the area of legal language "justice, correctness, legality". “Cheap” is a typical adjective in which everyday language differs in content from legal language. The common man initially understood this to mean “inexpensive” or “cheap” and today (after 1935) inferior or bad, but not “fair”. Cheap did not take on the meaning of "inexpensive" until the 18th century. The saying “What is right for one is right for the other” means that something is both acceptable or both agree. This meaning is also visible in the expression “cheap something”.
- Harun Maye: The Paradox of Equity in Law and Hermeneutics . In: Judging / Deciding . Ed .: Cornelia Vismann , Thomas Weitin . Munich 2006. pp. 56-71.
- Emmanuel Michelakis: Plato's doctrine of the application of the law and the concept of equity in Aristotle . Munich 1953.
- Peter Oestmann (Ed.): Between strict form and cheapness. Research on the premodern civil process . Cologne, Weimar, Vienna 2009.
- Karl Schmölder: Equity as the basis of civil law: A contribution to the correction of the official legal opinion . Hamm 1907.
- Anil-Martin Sinha / Franz Wiedmann: The importance of the epic in Aristotle for medical action , in: Würzburger medical historical reports , Volume 22, 2003, pp. 105–112
- The word cheap still meant 'appropriate' until the 19th century.
- Fabian Bross: Basic Course in German Linguistics for the Bavarian State Examination , Tübingen: Gunter Narr, 2014, p. 173
- Thomas Henkel: Conceptual Jurisprudence and Billigkeit , 2004, p. 124.
- RG, judgment of April 11, 1901, Az. VI 443/00, RGZ 48, 114–129 (124)
- BGH, judgment of April 2, 1964, Az.KZR 10/62, full text = BGHZ 41, 271, 279
- Michael Stümer: The principle of proportionality in the law of obligations , 2010, p. 429.
- BGH, judgment of October 14, 1958, Az. VIII ZR 118/57 = NJW 1958, 2067.
- Aristotle: Book V , Section 14
- Heinrich Dieterich: About the equity in the decision of legal cases , 1804, p. 26.
- Johann B. Mayer: Synonymic Concise Dictionary of the German Language , 1837, p. 448
- Barbara Stickelbrock: Content and limits of judicial discretion in civil proceedings , 2002, p. 300 ff.
- Barbara Stickelbrock: Content and limits of judicial discretion in civil proceedings , 2002, p. 304.
- BGH, judgment of April 2, 1964, Az.KZR 10/62, full text = BGHZ 41, 271.
- Staudinger- Rieble, BGB, § 315, Rn. 117.
- BGH, judgment of March 28, 2007, Az. VIII ZR 144/06, full text .
- BGH, judgment of October 10, 1991, Az. III ZR 100/90, full text because of collectively agreed wastewater fees .
- BGH, judgment of November 19, 2008, Az. VIII ZR 138/07, full text .
- BGH, judgment of June 13, 2007, Az. VIII ZR 36/06, full text .
- BGH, judgment of March 6, 1986, Az. III ZR 195/84, full text = BGHZ 97, 212.
- Walter Hadding, Klaus Hopt , Herbert Schmimansky: Entgeltklauseln in der Kreditwirtschaft , 2002, p. 129.
- BGH, judgment of June 10, 2008, Az.XI ZR 211/07, full text .
- BGH, judgment of April 13, 2010, Az.XI ZR 197/09, full text .
- Duden: Equity