An obiter dictum ( Latin for "what is said in passing") is a legal opinion expressed in a decision of a court that does not bear the decision made, but was only expressed because the opportunity arose. The opposite of the obiter dictum is the ratio decidendi .
Courts of last instance occasionally add obiter dicta to their judgments , because otherwise the decision-making judge will often no longer have the option of expressing their legal opinion on similar cases or a principle that is irrelevant to the case for a long time. This is due to the fact that in some areas there has been an established case law for a long time , so that lawsuits are no longer filed because these would only be successful if a changed legal opinion would apply. Obiter dicta is intended to break this circle between the lack of a changed legal conception and the mutually resulting lack of judgments .
In the opinion of the then BAG Vice-President Hans-Jürgen Dörner , obiter dicta “have the weakness of not contributing anything to the concrete legal finding of the individual case, regularly confusing the readers and often standing in the way of later knowledge”. In the best-case scenario , an obiter dictum contributes to legal training . Apart from the “moment of legal confusion” described by Dörner, there is also the risk of disregarding the principle of separation of powers . The court only has to decide the respective individual case, i.e. regarding the subject of dispute . If the court contradicts the applicable law by obiter dictum, it prejudices the legislative competence of the legislature in addition to its decision-making mandate. This also applies to the German Federal Constitutional Court : the last resort of its competence would be a declaration of invalidity in accordance with (2) sentence 2 BVerfGG .
On the other hand, obiter dicta can also announce possible future changes in the case law and thus loosen trust in a solid case law, which satisfies the principle of legal certainty required by the rule of law .
Obiter dicta according to state
A well-known obiter dictum was pronounced in 1993 by the Second Senate of the Federal Constitutional Court (BVerfG) in the ruling on the new regulation of the termination of pregnancy . The Senate determined that a legal qualification of the existence of a child as a source of harm is not considered by the constitution. That is why it is forbidden to see the maintenance obligation for a child as harm . With this finding, which was of no importance for the actual norm control procedure , the Second Senate turned against the case law of the Federal Court of Justice (BGH) on the liability of doctors for unwanted pregnancies. The Düsseldorf Higher Regional Court then noted that a "casual and non-binding remark" by the Federal Constitutional Court did not mean that neither damages nor compensation for pain and suffering were to be granted. After the BGH did not deviate from its consistent case law, even after the decision of the Second Senate of the BVerfG, since it only sees a non-binding obiter dictum in the statements of the Second Senate of the BVerfG, the first - responsible for civil matters - was shortly thereafter based on a constitutional complaint Called the Senate of the BVerfG. This confirmed the view of the BGH.
In Anglo-American common law , obiter dicta, unlike the ratio decidendi of a judgment in a precedent, are not binding precedent , i.e. not binding for the lower courts. Nevertheless, they are often included in decisions.
- Rolf Lamprecht: Obiter dictum - arabesque or ballast? , in: NJW 1998, 1039-1041.
- Hans Lilie: Obiter dictum and divergence compensation in criminal law: A field of tension between revision law and judicial constitutional law , Heymann Verlag 1993, ISBN 3-452-22236-5 .
- Theo Mayer-Maly , Hans Carl Nipperdey : Risk distribution in companies indirectly affected by lawful labor disputes . Mohr, Tübingen 1965, p. 23 ff . (Discuss the meaning of Obiter Dicta ).
- Wilfried Schlueter : The Obiter dictum The limits of the highest court decision-making, illustrated using examples from the case law of the Federal Labor Court . In: Writings of the Institute for Labor and Business Law at the University of Cologne . tape 29 . Beck, 1973, ISSN 0724-5386 , p. 204 ff .
- Winfried Schuschke: The “cable connection costs” decision of the BGH or: Obiter dicta - the (forbidden) “surprise eggs ” of the jurisprudence , in: NZM 2007, 870–871.