Validity-preserving reduction

Validity-preserving reduction (orthographically also correct: validity-preserving reduction ) is a form of interpretation in jurisprudence in which the effectiveness of the relevant legal provision or contractual clause is maintained. The legal provision or contractual clause is restricted in its effect (contrary to the original intention of the legislature or the contractual partner), since it would be ineffective if it were further interpreted; it is reduced to the "core", which is still legally permissible, so that its validity is preserved, at least in terms of its reason.

In the area of ​​content control of general terms and conditions (GTC) , a validity-preserving reduction is generally excluded. If a clause is ineffective when using terms and conditions, it will be replaced by the statutory regulation from which it deviates. The reason behind this is that the user of the terms and conditions is already disadvantaging the other contractual partner by setting the terms and conditions unilaterally. This should only be to his advantage if he restricts himself to agreeing effective clauses. If he goes beyond the permissible extent, a validity-preserving reduction would have the consequence that the clauses would only be reduced to the legally permissible extent, which would allow him to include extreme clauses with the certainty that in any case the legally permissible maximum is agreed with them. This contradicts, on the one hand, the prohibition of discrimination and, on the other hand, the transparency requirement , because now the other part cannot know which clauses are now considered to be agreed.

Example:

If one of the terms and conditions obliges the contractual partner to carry out cosmetic repairs according to fixed deadlines, it is ineffective as a whole because it could put him at an excessive disadvantage

• a renovation has to be carried out after a certain period of time with no ifs and buts, regardless of the actual condition of the rooms, i.e. regardless of necessity
• a deadline plan could be combined with other clauses that additionally require a renovation when moving out, regardless of how long ago the ongoing renovation was due according to the schedule.

There is no validity-preserving reduction to cases of clear necessity or decades of use anyway, as the law does not make any adjustments in favor of the user of the terms and conditions. The (otherwise dispositive) statutory regulation from which the deviation was made applies.

A so-called severability clause does not lead to a different result in terms of general terms and conditions: it collides equally with the principles of Section 306 and Section 307 of the German Civil Code and is therefore ineffective.

The prohibition of the validity-preserving reduction also applies to commercial transactions or business dealings by entrepreneurs, because the law makes the basic decision that within the scope of Section 310 Paragraph 1 BGB, entrepreneurs are also worthy of protection with regard to terms and conditions and also the basic rules of § 307 BGB apply to them.

In the area of ​​the interpretation and application of legal norms, a ban on validity-preserving reduction does not apply. On the contrary, such standards, if they are "divisible" in terms of content, must continue to be applied to the extent that does not violate overarching evaluations (→ constitutional interpretation ).

Individual evidence

1. ↑ Palandt, BGB, before Section 307 margin no. 8th
2. ↑ BGHZ 84, 109 = NJW 1982, 2309
3. ↑ BGHZ 92, 315 = NJW 1985, 319; BGH NJW 1993, 1787
4. ↑ BVerfGE 2 BvR 696/04 margin no. 27 mwN

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