Legal prohibition

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In law, a legal prohibition is a prohibition that has as its content the prohibition of certain legal transactions or actions by legal norms .

General

Law is any domestic legal norm within the meaning of Art. 2 EGBGB , including, for example, ordinances or municipal statutes . In addition to domestic legal norms including those of to European law , the international law or foreign legal norms, if in accordance with German law rules the respective foreign substantive law applies, its prohibition laws in the sense of § 134 BGB. With a ban, a legal norm prohibits certain legal transactions and actions. A prohibition law exists when the execution of a legal transaction (which is actually possible according to the legal system ) is prohibited with regard to its content, a success disapproved by the legal system or the special circumstances under which it was carried out. In addition, it must be a mandatory rule that cannot be changed or omitted by contracts. The prohibition laws do not include mere regulatory provisions that are directed against the nature of a legal transaction ( e.g. shop closing time ).

Legal engineering

From a legal point of view, it depends on the wording in the law. A prohibition exists if the law mentions “must not”, “not permitted” or “inadmissible”. Pure should-regulations (“shouldn't”) or even can- do regulations are not prohibited. It depends on the purpose of the law if “cannot” is used. Unilateral bans are aimed only at one of the persons involved in the legal transaction; bilateral or multiple bans are aimed at all contracting parties.

  • The violation of a unilateral prohibition law usually does not lead to ineffectiveness. Only if the execution of the legal transaction would exceptionally be incompatible with the purpose of the Prohibition Act, to accept the regulation made by the legal transaction and allow it to exist, can this be assumed to be null and void.
  • The violation of a bilateral prohibition law usually leads to the nullity of the illegal legal transaction. However, the bilateral nature of the prohibition is not decisive here; the purpose of the standard is decisive in the individual case. The mutual exchange of services should be prevented. An indication of the nature of a prohibition is a threat of punishment or a threat of a fine for those involved.

It is sufficient, however, that only one contracting party violates a bilateral prohibition law.

Legal consequence

Violate legal transactions or acts against a ban law, occurs after § 134 BGB as a legal consequence is always the nullity of the contractual legal obligation business , while the performance of business usually remains effective. If, however, a shift in assets is prohibited ( Section 333 StGB: taking advantage ), the nullity also extends to the performance transaction.

Avoidance transactions are also void . However, it is disputed here whether an intent to circumvent is necessary or whether objective circumvention is sufficient. According to case law and the prevailing opinion in the literature, a circumvention of the law exists even if the contracting parties do not act or not demonstrably act with intention to circumvent the law. Some circumvention transactions are expressly prohibited ( e.g. Section 306a ( prohibition of circumvention), Section 312 et seq., Section 476 (1), Section 478 (4) sentence 3, Section 487 , Section 506 or Section 655e (1) BGB). The circumvention must aim to "thwart the purpose of a legal norm by other legal structuring options."

Special features such as apply in violation of price regulations § 5 WiStG ( Mietwucher ) or § 291 of the Criminal Code ( usury ). In these cases a violation leads to partial invalidity, as far as it concerns the excessive price; otherwise the contract remains effective ("validity-preserving reduction"). The extent to which the price is reduced, either to the still permissible price or the customary local price, is controversial.

literature

Individual evidence

  1. ↑ BVerfG , decision of July 19, 2016, Az .: 2 BvR 470/08; OLG Munich , judgment of January 16, 2008, Az .: 3 U 1990/07 = NJW-RR 2009, 193
  2. ^ Christian Armbrüster : § 134 BGB, Rn. 39 . In: Munich Commentary on the Civil Code . 7th edition. tape 1 , 2015.
  3. ^ Christian Armbrüster : § 134 BGB, Rn. 40 . In: Munich Commentary on the Civil Code . 7th edition. tape 1 , 2015.
  4. ↑ Karl Larenz / Manfred Wolf, BGB General Part , 8th edition, 1997, § 40 Rn. 6th
  5. ↑ BGHZ 143, 283 , 287
  6. ↑ Karl Larenz / Manfred Wolf, BGB General Part , 8th edition, 1997, § 40 Rn. 30: The decisive factor is the purpose of the ban
  7. ↑ Damjan Wolfgang Najdecki, Circumvention of the protective regulations for the purchase of consumer goods , 2008, p. 30
  8. ↑ BGH NJW 1991, 1061
  9. ↑ BGHZ 89, 316 , 319
  10. ↑ so BGH NJW 1994, 722 , 723 f.
  11. ↑ so Hanseatisches Oberlandesgericht NJW 1983, 1004