Duty (right)

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Mandatory ( English duty ) or legal obligation ( English legal obligation are) the right to a legal entity by legal norms or contract imposed rules of conduct .


Duty and legal obligation are legal terms that appear very frequently in law, alone as a duty or as a word component in the BGB 945 times, in the EStG 701 times or in the HGB 292 times. In 1798, the philosopher Immanuel Kant described legal duty as the necessity of an action out of respect for the law. According to the legal scholar Hans Kelsen , legal duty is the primary and actual subjective manifestation of law.

The essential function of a legal sentence is that it establishes a legal obligation. Legal obligation is the obligation imposed by the law on a legal subject to do , tolerate or omit . The person assuming the duty has to arrange his behavior as it is prescribed for him. It is an order addressed to people by the legal system and to be followed by them . The aim of the legal system is not the obedience of the obligated person, but the establishment of the desired state. Certain facts are described in the law as undesirable, but if they are implemented, there is a threat of legal consequences . To avoid the legal consequence, the norm addressees should be forced to refrain from the undesired behavior.

Etymology and history

The word duty is with Notker III. attested around the year 1000 as Old High German "phliht (e)". In today's spelling, the word appeared for the first time in 1454 in the feudal law of the Saxon mirror . In 1561, Josua Maaler referred to “duty and office” under the heading of duty, but the official duty first appeared in 1691 with Kaspar von Stieler . Samuel von Pufendorf is considered to be the founder of the doctrine of duties, which he developed in 1672, based on the assumption that rights for the individual only exist within the framework of the obligation and serve to fulfill the duties. The word legal obligation appeared for the first time in 1705 with Christian Thomasius , who made a distinction between moral obligation ("conscience obligation ") and legal obligation . He was legally bound by external compulsion ( Latin obligatio externa ). He united a duty, which was intended as a legal obligation, by distinguishing between the internal (moral) and external (legally positive) binding force of law in such a way that no longer an internal bond, but that only one related to the specific legal order could be decisive. Since 1796 Johann Gottlieb Fichte , the legal obligation took up again, the word compulsory component of many compound words like the typical contractual principal obligation , ancillary service obligation , collateral duty , compulsory portion , duty of care , breach of duty or public defender . In 1797 Kant differentiated: "Duty is the act to which someone is bound", according to Kant the legal obligation is that "one can be forced to perform".

In 1912 the philosopher Julius Binder denied the existence of a duty, because “duty is not a legal term”. He used the word liability instead . The legal concept of obligation is derived from duty, i.e. being bound by a duty.

Legal obligation

Whether duty and legal obligation coincide in terms of content in the legal sense is controversial in the specialist literature . In any case, legal norms do not differentiate between the two legal terms. The "recognition theories" assume that the binding force of the law comes from the recognition, respect or approval of legal norms by the legal subjects. From the perspective of the legal subject, binding through norms means legal obligation, from the perspective of norms legal validity . Legal obligation is understood to mean all rules of conduct imposed by legal norms for the norm addressees affected by this . Legal obligation is the legal norm governing a certain behavior . A legal obligation can exist without a moral obligation . Every legal obligation is matched by a right. "A legal obligation therefore always has an injustice omission as its object". We speak of legal obligation when a civil law conflict decision designates a certain behavior as ought and provides coercion to enforce this behavior. An obligation can therefore be a duty based on good morals and a legal obligation at the same time , for example the obligation to fulfill a contract. According to Kant, perfect duties correspond to legal duties , and imperfect duties correspond to virtue duties .

Obligations in individual areas of law

The areas of civil law , criminal law and public law are listed as examples .

civil right

State behavior control is also carried out by means of private law. The law often grants not only rights, but also corresponding obligations of third parties, which are intended to protect the core of these rights. In the law of obligations , the legal obligation is referred to as a liability . As a rule, obligations result from an obligation to perform , whereby the party demanding a service is called the creditor and the party providing a service is called the debtor . The obligee is therefore entitled to demand performance from the debtor from the debt relationship ( Section 241 (1) sentence 1 BGB). The obligee's claim under the law of obligations is referred to in the law as a claim , with it corresponds to the debtor's liability, an obligation to provide consideration . Violated the debtor's liability, the creditor may substitute the thereby resulting damage demand. This does not apply if the debtor fails to breach of duty represented has.

In most cases, an obligation includes several performance obligations. When the purchase agreement is for example in § 433 1 BGB. The seller of a thing obliged the buyer to the matter over to him and the property to give to the cause. In § 433 para. 2 BGB finally the buyer is obliged to pay the seller the agreed purchase price to be paid and the purchased commodity to decrease . These obligations of one contracting party are matched by the corresponding claims of the other contracting party. Duty and entitlement are the subjective legal forms of a legal norm, so that ultimately applies: no entitlement without legal obligation. The claim is always linked to an obligation; However, there are also legal obligations without corresponding claims; they occur frequently in public and constitutional law ( imperfect obligations ). Claim and duty are corresponding terms, but they are not congruent. Therefore, from the existence of an (omission) obligation, a corresponding claim cannot be inferred.

Criminal law

In criminal law , one knows obligatory offenses in which the violation of an extra- criminal obligation is in the foreground. It is a criminal offense with a perpetrator in which someone abuses or neglects the duty arising from his or her social role and thereby causes a violation of legal interests. Examples are violations of family law obligations (Section 170 , Section 171 , Section 221 Paragraph 1 No. 2 or Section 225 StGB) or Section 326 Paragraph 1 and 2 or Section 339 StGB. For example, Section 170 (1) of the Criminal Code threatens someone with punishment if he evades a statutory maintenance obligation so that the subsistence needs of the dependent is endangered or would be endangered without the help of others. At the end of the day, every crime can be seen as a compulsory offense, because behind every criminal law there is an imperative to behave in a certain way. Thus, criminal law is generally based on the idea that everyone is obliged to behave in a certain way.

In criminal law, the legal obligation is directed towards a certain behavior and is to be taken from the legal offense, which is to be understood as an imperative ("You shouldn't ..."). Everyone has the duty to avoid certain infringements of legal interests. The perpetrator has committed the offense of killing ( Section 222 of the Criminal Code) if he has violated his duty to avoid the death of other people. If, on the other hand, he acted in self-defense ( Section 32 StGB), there is no breach of duty because the duty to avoid the death of others is limited in the self-defense situation. However, where there is no duty to do something, mere inaction cannot be punishable.

A conflict of duties exists when at least two duties of equal importance are opposed to one another. In this case, the obligated party must choose one of the two obligations, because the fulfillment of one obligation means the violation of other obligations. According to the principles of justifying conflict of duties, a perpetrator does not act unlawfully if, in the case of duties of different rank, he fulfills the higher-ranking duty at the expense of the secondary duty or, in the case of duties of equal value, one of the two. Because the norm addressee cannot fulfill both duties at the same time. If, for example, the obligation to provide assistance is temporarily superseded by an “other important duty” in the event of failure to provide assistance according to Section 323c (1) of the Criminal Code, the obligation to provide assistance only comes back to life when the other obligation is fulfilled.

Public law

The state and its public administration can also have public obligations towards one another or towards citizens . This applies in particular to public tasks , the fulfillment of which is connected with a public duty. For example, there is an obligation to pay civil servants' salaries, to reimburse overpaid taxes or to pay compensation for expropriation ( property obligations ). In addition, there are non-property public obligations such as authorizing public roads and paths for public use , holding elections or granting permits or permits under certain conditions. The issuing of administrative acts usually also creates public obligations. Conversely, citizens are subject to a tax liability , civil servants to their employer .

The help for livelihood in SGB ​​XII states that self-help takes precedence over public social assistance and requires the person seeking help to do any reasonable self-help (e.g. Section 2, Paragraph 1, SGB XII). This means that not only is there an obligation for everyone to live or become independent of social assistance, but also the obligation to keep the necessary social assistance as low as possible.

Legal consequences

In the event of a breach of duty, the addressee of the norm is threatened with sanctions , because the legislature can only credibly enforce its mandatory law , if violations also threaten legal consequences . While in civil law usually the compensation according to § 280 BGB is provided threaten in criminal penalties ( money or imprisonment ), in Sozialrecht threaten at breaches after § 31 in SGB II § 31a of said SGB II legal consequences (for example, reduction of the unemployment benefits II ).

Individual evidence

  1. Immanuel Kant: The Metaphysics of Morals. Part 2, 1798, pp. AA IV 379.
  2. Hans Kelsen: Works: Published writings 1911. Volume 2 / half volume 1, 1911, p. 435 f. ( books.google.de ).
  3. Hans Möller, Gerrit Winter, Ernst Bruck: Commentary on the Insurance Contract Act. 1988, p. 630 ( books.google.de ).
  4. Ludwig Enneccerus , Hans Carl Nipperdey : General part of civil law. Volume I, 1959, p. 443.
  5. Eike von Repgow : Des Sachsenspiegel 2. Part. Volume 1, 1454, Art. 80, § 2.
  6. Ulrike Köbler: Becoming, changing and being of the German private law vocabulary. 2010, p. 323 ff.
  7. Samuel von Pufendorf: De iure naturae et gentium libri VIII. 1672, p. 44
  8. Christian Thomasius: Fudamenta iuris naturae. 1705, p. 150
  9. Hans-Ludwig Schreiber : The concept of legal obligation: study of sources for its history. 1966, p. 149 f.
  10. ^ Johann Gottlieb Fichte: People and State. 1796, p. 43.
  11. ^ Prussian Academy of Sciences: Kant's collected writings. Volume VI, 1907, p. 222.
  12. ^ Prussian Academy of Sciences: Kant's collected writings. Volume VI, 1907, p. 220.
  13. Julius Binder: Legal norm and legal obligation. 1912, p. 45.
  14. ^ Anton Leist: Morality as a contract ?: Contributions to moral contractualism. 2003, p. 46.
  15. Wolfgang Kersting: Well-ordered freedom. 1984, p. 76.
  16. Jan Schapp: About freedom and law. 2008, p. 57.
  17. Immanuel Kant: Lecture Moral-Mrongovius II. 1784/1785, p. 618.
  18. Alexander Hellgardt: Regulation and private law. 2016, p. 342.
  19. ^ Jürgen Schwabe: Basic course on constitutional law. 1995, p. 10 ( books.google.de ).
  20. Claus Roxin : perpetrators and perpetrators. 1967, p. 354 fn. 2
  21. ^ Claus Roxin: Obligatory offenses and criminal rule. In: Roland Hefendehl, Tatjana Hörnle, Luís Greco (eds.): Festschrift for Bernd Schünemann on his 70th birthday on November 1, 2014. 2014, p. 522 ( books.google.de ).
  22. ^ Stefan Arnold: Infidelity in the GmbH and stock corporation. 2006, p. 13 ( books.google.de ).
  23. Harro Otto: Basic Course in Criminal Law. 2004, p. 45 ( books.google.de ).
  24. Harro Otto : Basic Course in Criminal Law. 2004, p. 156.
  25. Johannes Wessels, Werner Beulke: Criminal Law, General Part. 2009, p. 284 ( books.google.de ).
  26. Eberhard Schmidhäuser , JZ 1955, p. 437 f.
  27. Hans Peters: Textbook of the administration. 1949, p. 144 ( books.google.de ).
  28. ^ Günter Püttner: Handbook of municipal science and practice. Volume 4, 1983, p. 345.