General clause
In jurisprudence, a general clause is a legal norm whose facts are broadly defined. Because the case law has to specify general clauses, one also speaks of gaps intra legem (lat. Within the law ) or delegation gaps .
Reasons for general clauses
There are essentially three reasons for using general clauses:
- It is impossible to anticipate all conceivable future facts that are supposed to fall under the norm. For example, fair trading law works with a general clause in combination with specifying special facts , because the market keeps creating new forms of behavior that must be viewed as unfair.
- Changing standards of values and beliefs can also be taken into account with general clauses without the law having to be adapted. To be mentioned here are the general clauses that focus on good morals . The contract of an unmarried couple about accommodation in a hotel a few decades ago would have been considered immoral and therefore null and void, which is no longer the case today.
- Open formulations can then be an expression of difficulties in finding consensus in the legislative process. The legislature thus delegates the politically sensitive decision to the courts.
The lack of legal certainty speaks against the use of general clauses . At least this will improve over time due to the concretization by the case law. Another sensitive question is how the general clauses are filled with content; ideologies of injustice can also be opened the door here. The responsible handling of the general clauses is subject to social control, against which the dangers of abuse must be weighed up.
Examples
Austria
A contract that violates a legal prohibition or against morality is void. ( § 879 Paragraph 1 ABGB , corresponding to § 134 , § 138 BGB ).
- The immorality is not an objectively tangible fact , but is subjectively dictated by society and can also change over time. The Supreme Court decided, for example, that beer purchase agreements with a term of 30 years are against common decency because they restrict your freedom too much .
Germany
The debtor is required to effect the performance as good faith with regard to the prevailing practice require. ( § 242 BGB)
- Any unlawful act is contrary to good faith. The case groups for this have been worked out differently in the case law.
Anyone who undertakes actions in business dealings for the purpose of competition that offend morality can be claimed for injunctive relief and compensation . (§ 1 a. F. UWG )
- The teaching had developed several case groups for this clause: customer catching, hindrance, exploitation and breaking the law ( Hefermehlsche case groups). These should make the broad general clause more practicable.
- In the new UWG (since the new version of July 3, 2004 ( Federal Law Gazette I p. 1414 )) there is a less far-reaching general clause in Section 3 UWG as well as standard elements in Section 4-6 UWG .
In the police and regulatory law of the federal states and also in the Federal Police Act , the general clauses of police and regulatory law apply ; a power that had a forerunner in the Prussian General Land Law (ALR) ( Paragraph 10 II 17 ALR ) of 1794.
Further general clauses: § 157 BGB, immorality ( § 826 BGB), good faith § 242 , § 138 , § 314 , § 626 BGB and violation of the transparency requirement ( § 307 Paragraph 1 Clause 2 BGB).
Switzerland
Everyone has to act in good faith in the exercise of his rights and in the performance of his duties. (Art. 2 Para. 1 ZGB: good faith)
Likewise, compensation is required for anyone who deliberately harms another in a manner that is contrary to good morals. (Art. 41 para. 2 OR: immorality)
Any behavior or business conduct that is deceptive or otherwise contrary to the principle of good faith and which influences the relationship between competitors or between suppliers and customers is unfair and unlawful. (Art. 2 UWG: unfair behavior)
Meaning of the general clauses in National Socialism
At the time of National Socialism, jurisprudence pursued the task of determining the concrete content of the terms of the general clauses for practical application after the seizure of power by National Socialism. This is v. a. clearly through the following judgments:
"The concept of a violation of good morals, as it is contained in Section 138 of the German Civil Code (BGB), is essentially given by the popular sentiment that has prevailed since the upheaval , the National Socialist worldview."
"The basic view of National Socialism based on the völkisch life and moral laws has general validity for the interpretation and assessment of existing laws and contracts, and it is from this that the content of the concepts of good faith and good morals is determined."
Such an interpretation of the general clauses (especially § 138 BGB and § 242 BGB) made it possible to reduce already existing contractual claims (e.g. pension entitlements of Jewish employees) on the grounds that this was not possible with the national socialist ideology arrange.
The use of the general clauses in National Socialism was important with v. a. to secure a politically predetermined result the appearance of a justification from positive law . It shows that the general clauses are extremely elastic and adaptable. In this way, when such a clause was applied, the judge was given power over the existence of legal claims which outwardly looks similar to that of a legislature.
literature
- Ernst A. Kramer: Legal methodology. 2nd Edition. Stämpfli et al., Bern et al. 2005, ISBN 3-7272-9459-0 .
- Andreas Wallkamm: General Clauses - Norms in the area of tension between flexibility and the rule of law. On the relationship between law and politics , in: Rechtstheorie 39 , (2008), 507 ff.
