Pill case
In the so-called pill case , the Federal Court of Justice ruled on April 17, 1986 that the use of contraceptives as a core area of private life is excluded from legal regulations.
facts
The defendant moved in with his partner in 1977. Both agreed that the relationship should not result in a child and that the partner should regularly take contraceptives. She stopped doing this three years later and had a child in 1981.
The defendant then turned to a lawyer who advised a lawsuit against the partner because he was of the legal opinion that the agreement that the partner should take contraceptives on a regular basis had resulted in a legally effective contract and the partner therefore for damages for breach of contract could be sued. The local court dismissed the lawsuit on the grounds that it was not conclusive. After the lawyer advised an appeal, the defendant also lodged this, but withdrew it after expressing concerns as to whether an enforcement from the expected judgment would be at all promising given the fact that the partner was in need of social assistance in the meantime.
After the lawsuit was withdrawn, the lawyer sued the regional court for payment of the lawyer's fee. The defendant filed a counterclaim and demanded damages from the lawyer on the basis that he had advised him wrongly and thus led him into a hopeless process. The regional court upheld the counterclaim, and the lawyer's appeal was dismissed by the higher regional court. The lawyer then appealed to the Federal Court of Justice.
Summary of the judgment
The Federal Court of Justice rejected the appeal and confirmed the decisions of the lower courts.
The court initially decided that it was doubtful whether the statement that the partner would undertake to take contraceptives was a legally binding will, the prerequisite for a legally binding declaration of intent and thus for the conclusion of a contract. But that could stand here, because even if there was a will to be legally binding, the legal transaction would be ineffective. Because the decision to want to have a child affects the narrowest core of the development of the personality, thus the core area of private life . In principle, this area cannot be contractually regulated, not even between partners, because such a contract would unreasonably affect the privacy of the person concerned. It follows that neither a breach of contract nor tort law can be sued for damages.
The lawyer had argued that based on the case law of the Federal Court of Justice on the child as damage, the claim obviously existed. The lawyer could easily have recognized that the case law there, which deals with medical liability claims as a result of treatment errors, is not even rudimentary applicable to the present case. In this and in the fact that the lawyer had not even discussed the legal question of whether there was a will to be legally bound, there was a mistake in the advice of the lawyer, which made him liable for damages.
literature
- Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. 2007, p. 211
Individual evidence
- ↑ BGH: Judgment of April 17, 1986 - AZ IX ZR 200/85 = BGHZ 97, 372
- ↑ Hans Rötzer: The altruism in civil law - a dogmatic investigation Univ.-Diss., Augsburg 2008, p. 6 f.
