Private autonomy

Private autonomy is the right to shape one's private legal relationships according to one's own decision. It corresponds to the ideal of acting responsibly according to one's will in a free society. The term is used in jurisprudence and legal philosophy , but also analogously in education . It comes from the thought of liberalism and assumes that human actions are based on reason .

Under constitutional law , private autonomy in Germany is part of the general principle of human self-determination and is at least essentially protected by the fundamental Art. 1 in conjunction with the general freedom of action according to Art. 2, Paragraph 1 of the Basic Law .

Private autonomy is expressed in civil law in the freedom of contract , freedom of association , freedom of property (→ right of disposal ), freedom of marriage and freedom of testament . The individual is entitled to establish, change or cancel rights and obligations. Beyond the mere freedom rights , he is therefore able to make legally binding regulations on his own responsibility within the framework of the legal system.

Insofar as private autonomy is one of the indispensable basic values of a free legal and procedural system, abuse must be able to be counteracted effectively, which is why legislation and case law are instrumentally embedded areas of responsibility to protect the welfare state legal system. In fact, there are in some cases great differences between people, for example in terms of their economic opportunities, their knowledge and their dexterity. In reality, not everyone is economically and socially equal, or only a few are materially in a position to use their legal freedoms, and presumably rarely, if not never, is every will expressed without, sometimes subliminal, compulsions. To protect such people from being disadvantaged, the legal system provides for restrictions on private autonomy. These restrictions should affect each individual according to his lead in economic power or knowledge.

Examples of such restrictions on private autonomy in civil law are the general terms and conditions control , social tenancy law , contractual obligations and numerous consumer protection provisions in the German Civil Code (BGB), for example on the right of withdrawal for contracts that were concluded outside of business premises or in distance sales.

These examples, in which the economically weaker person should be protected against a possible discriminatory rejection of his application through the obligation to contract , are countered by obligations to provide coverage , especially in insurance contract law . An example is the compulsory insurance according to the provisions of the compulsory insurance law for vehicle owners , according to which numerous insurance obligations in the area of liability insurance are designed. The compulsory insurance law forces the motor vehicle owner to take out insurance due to the obligation to contract ( § 5 PflVG ).

Concept history

Roman antiquity

The building of contract law has been built on the foundation of the idea of private autonomy for a long time: in particular in Roman law , which can still be found in almost all statutes of the Western world, the idea of private autonomy unfolds with the utmost harshness and ruthlessness.

The Romans, who from an early age had an open eye for the realities of life as well as a legal thought geared towards the realization of fundamental values such as freedom of the person, contractual loyalty and protection of property, formed their legal system as a legal system in which people their lives by giving them the opportunity to get to know different ways of life and to choose between them. Because Roman law was based on the fundamental value of the freedom of the individual and personal activity was the source of Roman law, personal freedom asserted itself in Rome without the authorization of the state, without placing everything in the hands of the state, the law as that To define the will of the state and leave it to implement it.

In Roman law, the content of every legal relationship, if one stripped the same of the accessories and reduced them to its legal core, was nothing more than personal will power, which was an almost unlimited, absolute power. Even an abuse of that power was legally possible, so the Romans were not offended by it. As long as personal freedom kept its course, as long as it served wise use, it met with no resistance.

Greco-Roman philosophy did not emphasize the closeness or the unity of the universe, but its fragmentation. Reality did not appear as a connected whole, but as a structure composed of many individual factors. So represented z. B. Democritus the idea that the universe is not a seamless whole, but consists of individual, indestructible, not reducible and indivisible particles. He called these particles "atoms". The Roman poet Lucretius also explained the atomistic philosophy.

The state prohibited the abuse of force only insofar as it was absolutely and unconditionally reprehensible, i.e. H. Such expressions of the subjective will were not to be tolerated, but not those that can only hypothetically qualify as abuse. Because in order to forbid them, the law had to go into an unmistakable detail of requirements and possibilities and run the risk of doing too little, now too much. Because a correct judgment about this is only possible in a concrete case, it was left to the judgment of the subject. Even the type constraint remained largely without influence on the freedom of content.

It is true that in Roman law, like a valve of the ius strictum , there was a particularly noble-looking instrument of the so-called practical sense, which restricted private autonomy. As such it appeared expressly in terms such as bona fides or iusta causa and above all in a special judicial virtue: aequitas . But even the aequitas initially meant more of a logical technique than a moral correction, even a rejection of established law. The aequitas was only fair, mainly because it permitted the more free application of the legal conclusion of subsumption of the law to a peculiar special case.

It is evidently the Roman principle to design property rights as freely as possible and to give individual activity and initiative the widest possible scope. In Roman law, property was a matter of course, as the unrestricted domination of an individual in a thing; not it itself, but its limitations (for reasons of neighborly coexistence, general welfare) required proof. The dispositions of the individual had the same character for the sphere of his sphere of power as those of the people for his own. Because of this, real estate and driving license were freely alienable and divisible; Roman law is hardly aware of statutory sales bans and restrictions on disposal. There were only a few restrictions on ownership.

The idea of autonomy and freedom was also retained in the relationship between the individual and the state. As great as the demands that the Roman state placed on its citizens, both militarily and initially also from a tax point of view, were also great the freedom it granted them to the community. Therefore, freedom of opinion, belief and worship were not unlimited, but granted to a large extent. The protection of the right to provocation and the legal restriction of corporal punishment were also felt in Rome as protection of freedom. The spatial and economic freedom of movement was great. Above all, the Roman state refrained from interfering with existing individual private rights. It is significant that the legal institution of “expropriation” in the sense of a state deprivation of private rights in the public interest is almost unknown to Roman law.

No less characteristic of the Roman idea of autonomy is that state and local administrations largely rely on the initiative and public spirit of their citizens. This includes, for example, the share in the administration of the state, participation in the legislative and judicial powers, in the election of officials, even in the administration of the police by means of the actiones populares , in short the entire republican self-regiment of the Romans. The principate's state was also a free community; because the principate was not a “regnum”. Even in the state budget, voluntary donations were a very significant item. But all this happened without coercion and without legal norms, in freedom and under one's own responsibility.

The Roman legal system thus left the citizen with a great deal of leeway in structuring the content of legal transactions. That is why Mommsen even spoke : “In Roman civil law, the freedom of the citizen has such an extensive scope that it does not need to be expanded, but needs to be restricted in many ways. [...] So if we strive to develop a law that is appropriate for free citizens, then as far as civil law is concerned, we can absolutely rely on Roman law of the classical period in this regard and be sure to find a spirit in it which often contradicts the principle of solidarity among citizens, but not that of the freedom of the individual. ”Although the legal guarantee of this leeway by the state and towards the state is only weak, the Roman state has its citizens - and to a lesser extent also the national peregrines - granted a wide space for free individual activity.

middle Ages

But after the Germanic tribes had destroyed the triumphant Roman human state and replaced it with the authoritarian state of God, society with its guild patriarchal " welfare " was not seen as an autonomous self-administration, but as a kind of enlarged family life. The people, who saw themselves less as a private, autonomous being than as part of a larger organism such as the church, the extended family or the monarchy, left the responsibility for their lives to the patriarch , the Pope in Rome, their bishops, the priests and pastors . What was valid as legal content was not clear from the personal will power, but from the idea of God, as lay judges and judges based on social prestige and religious authority determined from unconscious legal ideas and convictions what should be legal. The validity of the law was determined exclusively according to the membership of a person in a community, and sinful humanity always required foreign determination and, in the moral-theoretical sense, grace, because law itself was understood as a means against sin. A private sphere that was respected and protected by all Romans was no longer preserved in the Middle Ages.

The fact that church orders and prohibitions in the Middle Ages restricted private autonomy to a large extent can be demonstrated by the church's prohibition of interest and usury. Freedom of contract and private property were accepted in the Middle Ages; but not defended as a divine statute. The people, who could by no means be free from their drives, inclinations and sins, had no ability to determine themselves. Because justice prevailed as the normative form of heavenly participation in accordance with the Old Testament and expressed graduation from the highest power, law was founded as a religious hierarchy, like Thomas Aquinas as mediation between earth and heaven, heaven and earth has expanded. As a result, the hierarchically structured feudal society of the Middle Ages restricted human freedom of movement to a considerable extent. In daily life it was always not a question of the freedom of the individual, but of the grace of higher authority.

Modern times

However, the entire worldview of the Middle Ages was destroyed by the severe, intellectual, social and economic crises. Since the Renaissance , art has become secular, realistic; new inventions broke old traditions; the great discoveries shifted the trade routes; the firearms ended the period of chivalry; In place of speculative scholasticism, the empiricism of natural science and its experiments took over; as many old social ties disintegrated and the ordo idea of the step cosmos, which had assigned each its fixed place, collapsed, the old individualistic philosophy, which Pericles , Thucydides , Cicero and Tacitus developed, through Francesco Petrarca , Giovanni Boccaccio , Leonardo da Vinci and Pico della Mirandola unfolded again; new wealth was formed in early capitalism ; of humanism , of rational thought opened the way and philosophy of the medieval text orthodoxy in any case exempt a result, spread from the commercial cities of northern Italy with the trade along the west and north, and summed up wherever no despotic regime prevailed, firm footing. The invention of the printing press by Gutenberg also led to a flood of books, so that reading became common property. Church dogma became questionable. When the prevalence of arbitrary unions could not hide the fact that the unity of the feeling for life had waned, the Reformation made it possible for everyone to read the Bible so that he could determine its meaning for himself. Thus the Reformation reaffirmed man as the measure of all things by emphasizing the needs of the individual.

This new self-centeredness had the consequence that the old Roman law was adapted to the circumstances of the time. In all European countries there has been contact with Roman law. In addition to Roman law, it is the newly emerging world of reasoning that helps natural law to become an effective element of modern European law. In the considerations of natural law in the 17th century, the legally binding force arose from a declaration of the free, autonomous personality of man. From this assumption of autonomy, Grotius formulated the idea of a private autonomous legal system and thus laid the foundation for a doctrine of contractual freedom. According to this, what has been contractually agreed should only apply because the contracting parties have agreed in free self-determination that it should be legal; the binding effect of what has been agreed in this way no longer results from a will of God or a worldly power, but from an obligation to vouch for the given word.

The axioms of contractual freedom can be traced back to the nature of man as a self-responsible individual. This individualism is mainly characterized by respect for the individual as a human being and the recognition of his views and tastes as the ultimate authority. In the 18th century, Immanuel Kant philosophically saw the possibility of human beings, with the help of practical reason, to recognize the causes of heteronomy and to strip them off in therapeutic self-education in order to achieve " autonomy " in which the will is free enough, to give oneself the moral law. In the sense of Immanuel Kant's philosophy, the “autonomy” of a person as free will makes him a person.

The autonomous will stands for the reason freed from all external and internal foreign determination. In this sense, the term “autonomy” also stands for the ability to control sensual impulses, to make oneself independent of desires and passions, and for the fundamental ability to align one's own actions with the laws and maxims of reason.

According to Kant, the will can only prove to be autonomous and thus free in relation to the formal form of will in the form of a general law. Kant gives this general law, the categorical imperative, three formulations: (1) “Act only according to the maxim by which you can at the same time want it to become a general law”; (2) “Act as if the maxim of your actions should become the general law of nature by your will ”; (3) “Act in such a way that you use humanity, both in your person and in the person of everyone else, at all times as an end, never just as a means”.

Subsequently, the material social ethics of the medieval law of reason with its scholastic tradition was replaced by a formal ethics of duty and freedom, which was derived from the moral autonomy of personality. These formal ethics of duty and freedom are all based on Kant's formal understanding of freedom and equality and the associated validity-logic argument that generally applicable norms are universalizable norms, but needs and empirical interests do not offer a solid basis for general legislation. The influence of this ethic of freedom on the historical school of law and Savigny's thinking has been discussed many times. The "independent existence" of law, as Savigny put it, should not force the autonomous morality of the person, but make it possible. Savigny put it succinctly that private law serves morality, but not by performing its command, but by ensuring the free development of its inherent power in each individual. He regards subjective law as an area of freedom that can just barely stand together with the freedom of the other; He interpreted legal transactions and legal will as an area of action for the autonomous personality.

Classical economics, associated with the name Adam Smith , agrees with the historical school of law in that it makes the freedom of the person the center of its thought. However, it also relieves the law of its responsibility for the justice of the results of human action in the most important social area, the economic area: the invisible hand of the market replaces the visible hand of law. The right remains the task of developing and guaranteeing fair “rules of the game” for market events. Legal areas in which, instead of the protection of human freedom, the enforcement of the commandments of moral action could have been demanded, therefore no longer occurred.

Up until the 19th century, this principle of autonomy was valued in practice by turning away from feudal-class ties: from status to contract; because the individual human being, being gifted with reason, could no longer be the object of ecclesiastical or secular power carriers, he had to free himself from feudal or absolutist entanglement; From an economic point of view, this floor plan corresponded to the owner / brokerage company developed up to that point and its concept of an unregulated exchange of goods, the sole control element of which is free competition among market participants.

The market economy required private law based largely on the ethics of freedom. The law, which would have set itself the goal of near-area morality (selflessness, loyalty, etc.) instead of the long-range morality of the market, has therefore tended to become a disruptive factor in the developing market economy. Because the feudal power structures of the past could only be overcome with this sustained advance of the liberalist movement, it is no wonder that liberal ideas and ultimately private autonomy were initially included almost undiminished as basic principles in the BGB.

Codification of the Civil Code

At the beginning of the 19th century, economic liberalism finally made itself the political standard-bearer of the “property bourgeoisie”, which had been strengthened in critical self-confidence. The energetic entrepreneur, who was able to unleash his economic impetus on the newly opened terrain of trade and business freedom without state intervention, was highly regarded at that time as the best guarantee for a steady increase in the prosperity of all. Free competition was revered as the most reliable economic control element. The liberalism taught that one should make the best possible use of the forces of competition out, coordinate the economic activities of individuals.

Because the social model for the codification of the civil code is primarily tailored to these concerns of the so-called "property bourgeoisie", the BGB of 1896 reflects the liberal-individualistic idea so that the bourgeoisie secure an autonomous area for the organization of its economic relations, thereby preserving what had just been fought for and at the same time expanding it as a basis for economic growth and political influence. The focus of the codified private law was placed on the motivated, responsible, competent and independent citizen, namely the " homo oeconomicus " as a type of human being, mixed with a citizen and businessman . His pathos was undoubtedly that of freedom.

Since this codification, which sprang from the roots of Roman law, private law has been constructed on the principle that the individual acting in accordance with enlightened self-interest is a legal subject endowed with autonomous will power. Accordingly, every individual should be empowered to regulate their legal relationships according to their needs independently and without state intervention. When the contract was concluded, it had to foresee its processing modalities with all risks and potential for conflict and negotiate these appropriately with a comparably informed and assertive contractual partner.

Accordingly, contractual partners willing to contract were considered to be the best judges of their own interests; the opposing interests were only protected oppositely by the contracting parties; each of the contracting parties took care of themselves; because according to the model he was reasonable, responsible and capable of judgment; States and courts have almost always been denied the authority to review contracts; Whether and how the individual safeguards his interests in the contract - in his favor or in his favor - was basically his own matter, his own self-determination. Since, according to experience, everyone could defend themselves against injustice that incriminated them, the legal consequences of the contract, which were not rejected by either, were unjust for either partner according to his assessment. So a correct result has come about, and a guarantee of correctness has been given by the contractual "mechanism".

It was based on the assumption that there is an abstract-formal equality of all legally competent legal subjects and therefore the presumption of correctness intervenes for the freely negotiated contracts. As a result, the different starting positions of the people participating in right-hand traffic, which come from the actual area such as B. income, experience and education result, do not affect the reasonableness of the decision to be made.

Thus, the idea that only private autonomy and contractual freedom correspond to the spirit of a free social and economic order and that the individual can develop as an individual personality only through autonomous activity in the community has become a basic idea of modern private law. Because everyone was “the maker of their own fortune”, modern private law, like classical Roman law, was written only for the vigilant (“ius vigilantibus scriptum”); Private law should protect against tutelage by the state or the legal system. The principle of non-intervention and respect for freely negotiated contracts applied to the state, because there was no other generally binding standard than the free economic decision of the individual.

The private autonomy of individuals therefore generally led to negotiation results that did not need to be corrected, because there is parity between the contracting parties with regard to the ability and will to behave sensibly. Should there nevertheless be disruptions in contractual parity in individual cases, the corrections may only be made until the privately autonomous system is effective again; d. H. the correction was basically limited to creating a sufficient basis for decision-making or sufficient assertiveness. Here the law basically renounced any substantive partisanship and did not intervene in the process of autonomous articulation and satisfaction of needs.

So it was not about the content of the legal agreements, provided that they do not exceed the usual limits of § 134 and § 138 BGB. Even §§ 134, 138 BGB did not protect the maintenance of the moral order, but rather very tangible public interests. The equality of performance and consideration was not measured against objective criteria, but formalized in the mechanism of the market; the laesio enormis was just as little accepted as the material equivalence principle of the Aristotelian, Thomistic and rational doctrine of contract law.

The state did not ask about the results of the exchange acts, but only concerned itself with the requirements and the guarantee of the exchange system as such. It abstained from the directives for any form of correctness of the result and instead directed its attention to asserting the reasonable will of the legal person in legal life.

The state, which legitimized itself through the will of those who submitted to this liberal basic idea, only had to recognize the impetus of the individual fulfillment of existence by giving its citizens the legal scope to independently shape their living conditions among one another and thus pave the way for a humane one and just order of life. Even if it has to take the social question into account, it did not take the path of adapting private law, but that of public law.

Accordingly, private law had to guarantee the negative freedom status of the legal subjects and thus the principle of legal freedom through the organization of a depoliticized economic society, which was withdrawn from state interference, while public law was assigned to the sphere of the sovereign state in order to keep the administration operating subject to interference in check to guarantee the positive legal status of citizens at the same time as individual legal protection.

The attention of the private legal system was aimed only at certain, primarily personal qualification requirements ( §§ 104 ff. , §§ 116 ff. BGB); In addition, the private legal system cleared the way for any results, the " justice " of which it extracted from the conclusion of the contract as such and whose legitimation it derived from the self-determination of the people documented in the conduct of business.

As a consequence, mandatory norms are only the exception in modern private law. Dispositive regulations predominate, which are not orders or prohibitions, but regulation proposals that only apply in the event that the contractual partners have not agreed otherwise. Also § 242 BGB defined how the parties have to act within the granted by the private autonomy framework; In the case of § 242 BGB, it was not a question of the nullity of the legal transaction, but merely a code of conduct for those involved in the transaction. Accordingly, standards for preventing a claim to freedom of contract could not be obtained from the BGB.

literature

Ultsch, in Schwarz / Peschel-Mehner (ed.), Kognos-Verlag Augsburg, ISBN 3-931314-04-9 (for revocation and consumer protection)
Paek Kyoung-Il, Citizen protection in the area of conflict with private autonomy, Kovac, Dr. Verlag, ISBN 978-3-8300-2485-9 (for guarantor and consumer protection)

Web links

Wiktionary: Private autonomy - explanations of meanings, word origins, synonyms, translations

Individual evidence

↑ BVerfGE 70, 123; 72, 170.
^ Otto Palandt : Bürgerliches Gesetzbuch . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , overview of § 104 Rnr. 1.
↑ BVerfGE JZ 90, 692.
↑ See Ihering , Geist des Roman Rechts, II 1, p. 153.
↑ It was Cicero who philosophically organized the principles of Roman law and at the same time passed it down comprehensibly to the following centuries. He wrote in 44 BC In his book "De Officiis (On Duties)" that the right thing is that which is honest, open and fair. So you have to keep your word and tell the truth and treat everyone - strangers, slaves and women - equally and respectfully; because all are equal in their humanity and their humanity gives them the right not to be treated with coercion, but with respect.
↑ The Romans themselves were not aware of the principle of personal freedom. But that is because they would have found a restriction on this side to be unthinkable (e.g. freedom in choosing a career) and that you only get an eye for freedom when you see that it is missing elsewhere . See Ihering, Geist des Roman Rechts, II 1, p. 136.
↑ Of course, in Roman law, the form was a necessary expression of the legal transaction. But the need for form and the compulsory type are to be separated. See Heinrich, Formal Freiheit und Materiale Gerechtigkeit, pp. 16-17.
↑ On this see Bloch, Naturrecht und Menschen Würde, p. 34.
↑ Both were leges , one leges privatae , the other leges publicae . Both were completely alike in terms of their justification. See Ihering, Geist des Roman Rechts, II 1, p. 147.
↑ The Roman principle formulates briefly and succinctly Antoninus Pius in Coll. 3, 3, 2 = D. (I, 6) 2: "Dominorum quidem potestatem in suos servos inlibatum esse oportet nec cuiquam hominum ius suum detrahi". See also Rudolf von Jhering : Spirit of Roman Law , II 1, p. 67.
↑ It was only used occasionally in the provinces and in special exceptional cases. Augustus did not dare to expropriate when building his new forum (des foro d'Augusto), although the space available was too limited and the architect had difficulties; Even in this respect for the acquired private rights, Augustus is a real Roman. Compare Fritz Schulz : Principles of Roman Law , pp. 109–110.
↑ See Schulz, Principles of Roman Law, p. 107.
↑ In the Middle Ages there were fundamental structural similarities. All economic activity moved within the framework of the house community , in which master craftsmen and journeymen, farmers and servants, merchants and servants form a whole. These communities are structured hierarchically and determined by the antithesis master and servant. The woman was either a mistress or a maid. See Mitteis / Lieberich, Deutsche Rechtsgeschichte, p. 221.
↑ Schlosser therefore spoke of the “openness of the law”, which is the “opposite of a rational system based on abstract regulatory patterns and ascending conceptually in logical legality”. See Schlosser, Grundzüge der Neueren Privatrechtsgeschichte, p. 13.
↑ The medieval conception of law may also have been strongly influenced by religion. The legal order was part of the divine world order, the law a work of God. One can also say: The medieval worldview was shaped by the idea of law, namely a law that originated in God and ended in him. Cf. Eisenhardt, Deutsche Rechtsgeschichte, p. 50; Bloch, Natural Law and Human Dignity, p. 38 ff.
↑ Cf. Singer, Self-determination and Traffic Protection in the Law of Declarations of Will, pp. 6 ff., 45 ff; S. Lorenz, Protection against the undesirable contract, p. 35 ff, has critically examined whether the principle pacta sunt servanda was understood as an essential element of self-determination.
↑ See Kant , Basis for the Metaphysics of Morals, p. 74 ff.
↑ According to this, the market, the exchange mechanism accessible to everyone, which functioned according to the law of the "invisible hand", determined the allocation system solely through the distribution of scarce resources. See Smith, Der Wohlstand der Nations, Munich 2003; Macpherson, The Political Theory of Property Individualism, Frankfurt a. M. 1980; Hunt / Sherman, Economics from a Traditional and Radical Perspective, Vol. 1, Frankfurt a. M. 1984.
↑ This " homo oeconomicus " always acts rationally, e.g. B. realistically assess legal alternatives or the prospects of success of a process and in this way develop self-regulatory powers in the overall social and state structure. Cf. Dieterich, Basic Law and Private Autonomy in Labor Law, 1995, p. 20; Koslowski, Der homo oeconomicus and business ethics, p. 76.
↑ See Schmidt-Rimpler, in: FS Raiser, p. 3 ff. (5-6); Schünemann, in: FS Brandner, p. 279 ff. (286).
↑ The hardly comparable starting positions of the individual legal entities, the differences in income, business experience and vocational training only have an effect, however, as the individuals do not have the same amount of resources at their disposal that they can use to purchase goods in the various markets . Cf. Flume, Allg. Part II, p. 10; Dauner-Lieb, consumer protection through the formation of a special private right for consumers, pp. 54–55.
↑ The framework and the instruments for safeguarding such private autonomy are provided by private law, which it is precisely through this self-restriction that gains the person-centered ethical dignity peculiar to it. See Schünemann, in: FS Brandner, pp. 279 ff. (283); Kemper, consumer protection instruments, p. 36.
↑ The principle of equivalence is only relevant in exceptional cases in which there is an evident disproportion between performance and consideration, i.e. in particular in the case groups covered by Section 138 of the BGB. Compare with Oechsler, Gerechtigkeit im modern exchange contract, pp. 1 ff .; Härle, The Equivalence Disorder, p. 11 ff.
↑ Legal business doctrine, especially contract dogmatics, and its last derivative, the declaration of will , are therefore at the center of the construction of the civilist system. See Schünemann, in: FS Brandner, pp. 279 ff. (283).
↑ In this context, the deliberations of the 2nd Commission on today's §§ 611 ff. BGB, which, under the impression of the criticism of the first draft, considered considering social policy demands, but ultimately with express reference to the competence of public law, are particularly informative in this context have refused. See advice on the draft of the BGB in the Reichstag-Stenographic Reports, 1896, p. 316 ff.
↑ According to this, it is not possible to judge and legally control the fairness of a contractual order. It naturally contradicts the attempt of medieval Christian business ethics to directly enforce the laesio enormis as a legal requirement. Cf. Flume, in DJT-Festschrift, 1969, p. 135 (136 ff.); Raiser, in DJT-Festschrift, 1960, 101 (131).
↑ The § 134 , § 138 and § 226 BGB the exercise of let freedom of contract to but within the limits of the ordinary legislative or moral order. The BGB itself does not contain any content-related restrictions. See Münch / Komm / Säcker, Introduction, Rn. 28.

[1] BVerfGE 70, 123; 72, 170.

[2] Otto Palandt : Bürgerliches Gesetzbuch . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , overview of § 104 Rnr. 1.

[3] BVerfGE JZ 90, 692.

[4] See Ihering , Geist des Roman Rechts, II 1, p. 153.

[5] It was Cicero who philosophically organized the principles of Roman law and at the same time passed it down comprehensibly to the following centuries. He wrote in 44 BC In his book "De Officiis (On Duties)" that the right thing is that which is honest, open and fair. So you have to keep your word and tell the truth and treat everyone - strangers, slaves and women - equally and respectfully; because all are equal in their humanity and their humanity gives them the right not to be treated with coercion, but with respect.

[6] The Romans themselves were not aware of the principle of personal freedom. But that is because they would have found a restriction on this side to be unthinkable (e.g. freedom in choosing a career) and that you only get an eye for freedom when you see that it is missing elsewhere . See Ihering, Geist des Roman Rechts, II 1, p. 136.

[7] Of course, in Roman law, the form was a necessary expression of the legal transaction. But the need for form and the compulsory type are to be separated. See Heinrich, Formal Freiheit und Materiale Gerechtigkeit, pp. 16-17.

[8] On this see Bloch, Naturrecht und Menschen Würde, p. 34.

[9] Both were leges , one leges privatae , the other leges publicae . Both were completely alike in terms of their justification. See Ihering, Geist des Roman Rechts, II 1, p. 147.

[10] The Roman principle formulates briefly and succinctly Antoninus Pius in Coll. 3, 3, 2 = D. (I, 6) 2: "Dominorum quidem potestatem in suos servos inlibatum esse oportet nec cuiquam hominum ius suum detrahi". See also Rudolf von Jhering : Spirit of Roman Law , II 1, p. 67.

[11] It was only used occasionally in the provinces and in special exceptional cases. Augustus did not dare to expropriate when building his new forum (des foro d'Augusto), although the space available was too limited and the architect had difficulties; Even in this respect for the acquired private rights, Augustus is a real Roman. Compare Fritz Schulz : Principles of Roman Law , pp. 109–110.

[12] See Schulz, Principles of Roman Law, p. 107.

[13] In the Middle Ages there were fundamental structural similarities. All economic activity moved within the framework of the house community , in which master craftsmen and journeymen, farmers and servants, merchants and servants form a whole. These communities are structured hierarchically and determined by the antithesis master and servant. The woman was either a mistress or a maid. See Mitteis / Lieberich, Deutsche Rechtsgeschichte, p. 221.

[14] Schlosser therefore spoke of the “openness of the law”, which is the “opposite of a rational system based on abstract regulatory patterns and ascending conceptually in logical legality”. See Schlosser, Grundzüge der Neueren Privatrechtsgeschichte, p. 13.

[15] The medieval conception of law may also have been strongly influenced by religion. The legal order was part of the divine world order, the law a work of God. One can also say: The medieval worldview was shaped by the idea of law, namely a law that originated in God and ended in him. Cf. Eisenhardt, Deutsche Rechtsgeschichte, p. 50; Bloch, Natural Law and Human Dignity, p. 38 ff.

[16] Cf. Singer, Self-determination and Traffic Protection in the Law of Declarations of Will, pp. 6 ff., 45 ff; S. Lorenz, Protection against the undesirable contract, p. 35 ff, has critically examined whether the principle pacta sunt servanda was understood as an essential element of self-determination.

[17] See Kant , Basis for the Metaphysics of Morals, p. 74 ff.

[18] According to this, the market, the exchange mechanism accessible to everyone, which functioned according to the law of the "invisible hand", determined the allocation system solely through the distribution of scarce resources. See Smith, Der Wohlstand der Nations, Munich 2003; Macpherson, The Political Theory of Property Individualism, Frankfurt a. M. 1980; Hunt / Sherman, Economics from a Traditional and Radical Perspective, Vol. 1, Frankfurt a. M. 1984.

[19] This " homo oeconomicus " always acts rationally, e.g. B. realistically assess legal alternatives or the prospects of success of a process and in this way develop self-regulatory powers in the overall social and state structure. Cf. Dieterich, Basic Law and Private Autonomy in Labor Law, 1995, p. 20; Koslowski, Der homo oeconomicus and business ethics, p. 76.

[20] See Schmidt-Rimpler, in: FS Raiser, p. 3 ff. (5-6); Schünemann, in: FS Brandner, p. 279 ff. (286).

[21] The hardly comparable starting positions of the individual legal entities, the differences in income, business experience and vocational training only have an effect, however, as the individuals do not have the same amount of resources at their disposal that they can use to purchase goods in the various markets . Cf. Flume, Allg. Part II, p. 10; Dauner-Lieb, consumer protection through the formation of a special private right for consumers, pp. 54–55.

[22] The framework and the instruments for safeguarding such private autonomy are provided by private law, which it is precisely through this self-restriction that gains the person-centered ethical dignity peculiar to it. See Schünemann, in: FS Brandner, pp. 279 ff. (283); Kemper, consumer protection instruments, p. 36.

[23] The principle of equivalence is only relevant in exceptional cases in which there is an evident disproportion between performance and consideration, i.e. in particular in the case groups covered by Section 138 of the BGB. Compare with Oechsler, Gerechtigkeit im modern exchange contract, pp. 1 ff .; Härle, The Equivalence Disorder, p. 11 ff.

[24] Legal business doctrine, especially contract dogmatics, and its last derivative, the declaration of will , are therefore at the center of the construction of the civilist system. See Schünemann, in: FS Brandner, pp. 279 ff. (283).

[25] In this context, the deliberations of the 2nd Commission on today's §§ 611 ff. BGB, which, under the impression of the criticism of the first draft, considered considering social policy demands, but ultimately with express reference to the competence of public law, are particularly informative in this context have refused. See advice on the draft of the BGB in the Reichstag-Stenographic Reports, 1896, p. 316 ff.

[26] According to this, it is not possible to judge and legally control the fairness of a contractual order. It naturally contradicts the attempt of medieval Christian business ethics to directly enforce the laesio enormis as a legal requirement. Cf. Flume, in DJT-Festschrift, 1969, p. 135 (136 ff.); Raiser, in DJT-Festschrift, 1960, 101 (131).

[27] The § 134 , § 138 and § 226 BGB the exercise of let freedom of contract to but within the limits of the ordinary legislative or moral order. The BGB itself does not contain any content-related restrictions. See Münch / Komm / Säcker, Introduction, Rn. 28.