Private law is that area of law that the legal relationship between legally - not necessarily economically - equivalent entities (→ natural person , → legal entity ) controls. The terms civil law or civil law ( translations of the Latin term ius civile ) are often used synonymously with private law , although strictly speaking they only refer to a part of it (namely the area of “general private law”; see below).
In jurisprudence, private law stands alongside public law (including criminal law ); for a more precise definition, see the definition of private law . In contrast to public law, private law provides for a freedom of will derived from private autonomy , which in principle allows the individual to enter into a legal relationship with others (or to renounce it). However, this freedom can be restricted by a large number of actual circumstances, such as a monopoly or the financial strength of the individual. Regardless of this, however, it is formative for private law because it allows law to be shaped without state influence. One of the most important structural means under private law is the private law contract (see also: legal transaction , contract law ).
Private law is divided at the top into
For further subdivisions, see the corresponding paragraphs and graphics below.
While civil law summarizes basic rules on persons , things and obligations (in Switzerland: obligations ), special private law - sometimes also referred to as commercial private law - is largely independently codified, for example in commercial , labor and tenancy law , competition law , etc.
General private law
Structure according to the pandemic system
The structure according to the Pandekt system divides civil law into five (or six, with independent personal law) sub-areas: general part (usually with personal law), law of obligations, property law, inheritance law, family law. This pandectistic scheme is followed by the German Civil Code (BGB) and the Swiss Civil Code (ZGB).
- general part
- Law of obligations
- Property law
- Family law
- Inheritance law
Structure according to the institutional system
The structure of civil law according to the institutional system , which is named after the main work of the classical Roman jurist Gaius , is a division according to Roman law , which was added during the time of the first great wave of codification - French Code civil , Austrian General Civil Code (ABGB) .
The classification is basically as follows:
- personae: personal and family law
- res: property law , law of obligations, inheritance law
- actiones : (literally) complaints; What is meant, however, are mostly claims, bases for claims but also formulas for legal action within the framework of the legislative procedure .
The Austrian ABGB follows this scheme, but without including procedural law:
- Personal law: Personal law (see general part), family law
- Property law
- Common provisions of personal and property rights
Special private law
Commercial law is known as the “special private law of merchants”. It includes legal norms , which for merchants apply, and therefore rules for commercial transactions, the company name of the merchant to commercial assistants ( trade brokers , sales representatives , commission agents , freight forwarders , warehousing), and further in the area of company law and rules on persons and corporations .
For all of these areas of law, the norms of general private law apply on a subsidiary basis . B. General private law generally applies to commercial transactions, but modified and expanded by the standards of commercial law.
This subsidiary relationship is codified in Germany in EGHGB . In the Swiss legal tradition, an independent commercial law has always been rejected on the grounds of democratic equality of all persons, which does not justify special treatment of merchants. Nevertheless, the OR occasionally contains special rules for commercial transactions (e.g. Art. 190 OR) which are intended to enable appropriate differentiations.Para. 1
The Labor Law regulates the legal relationships between workers and employers ( individual labor law ) and between the coalitions of workers and employers and between representative bodies of workers and employers ( collective labor ).
The norms of labor law often contain (unilaterally) mandatory provisions in favor of the employee. Here, too, the norms of general private law apply subsidiary .
Further areas of special private law are e.g. B. the Mietrecht , the traffic civil law , the consumer protection law or the securities law , it being noted that the leases, the traffic civil law and the Consumer Protection Law are often treated together with the civil law (Schuldrecht / Contract Law) and the securities law has an intrinsic close relationship to the commercial law.
A codification of civil law was made in Germany in 1900 with the Civil Code (BGB), in Austria in 1812 with the Civil Code (Civil Code), in Switzerland in 1883 with the Swiss Code of Obligations (OR) and 1912 with the Civil Code (CC), in France 1804 with the Code civil (Code Napoléon) and in Italy with the Codice civile . The Civil Code in particular had a strong impact and was a model for the other codifications of the so-called Civil Law Countries .
Before the German Empire introduced the civil code, there was already a codified land law in some German states, such as the Codex Maximilianeus Bavaricus Civilis of 1756 in Bavaria and the General Land Law for the Prussian States of 1794 (ALR). Some land rights were based on the civil code , e.g. B. the Baden land law of 1810 .
As early as the Middle Ages, many territories of the Holy Roman Empire of the German Nation had codified land law , which, however, regulated other areas of law (e.g. criminal and constitutional law) in addition to civil law.
International private law
In cases of private law with a foreign element (e.g. marriage of two people of different citizenship, a claim abroad or international contracts), there are special conflict of laws that determine which private law is to be applied. This area of law is - somewhat misleadingly - referred to as private international law .
Individual legal matters have been given international law regulations which then precede national regulations, in particular the international sale of goods through the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, which Germany , Austria and Switzerland have also joined.
- Volker Mayer: Commercial Law Volume 1, Legal Business Doctrine, Obligations, Commercial Transactions . 1st edition 2015, ISBN 978-3-17-030513-7 .
- Dieter Medicus, Jens Petersen : Basic knowledge of civil law. 10th edition. Heymann, Cologne / Berlin / Munich 2014, ISBN 978-3-8006-4737-8 .
- Martin Gebauer , Thomas Wiedmann (ed.): Civil law under European influence: The guideline-compliant interpretation of the BGB and other laws; Commentary on the most important EC regulations. 2nd revised edition. Richard Boorberg Verlag, Stuttgart 2010, ISBN 978-3-415-04479-1 .
- Helmut Koziol , Rudolf Welser , Andreas Kletečka, Brigitta Zöchling-Jud : Outline of civil law. 1st volume: 14th edition. Manz, Vienna 2014, ISBN 978-3-214-14712-9 ; 2nd volume: 14th edition. Manz, Vienna 2014, ISBN 978-3-214-14713-6 .
- Jan Schapp Methodology and System of Law. Articles 1992-2007 . Mohr Siebeck, Tübingen 2009. ISBN 978-3-16-150167-8 . (Methodology of civil law).
- Jan Schapp and Wolfgang Schur: Introduction to civil law. 4th edition. Vahlen, Munich 2007, ISBN 978-3-8006-3354-8 .
- Peter Münch, Margherita Bortolani-Slongo: Practice-oriented introduction to private law . 2nd Edition. Schulthess, Zurich / Basel / Geneva 2005, ISBN 3-7255-5061-1 .
- Jan Schapp methodology of civil law . UTB, Stuttgart 1998, ISBN 978-3-8252-2016-7 .
Roman private law
- Max Kaser , Rolf Knütel , Sebastian Lohsse: Roman private law . 21st edition. Beck, Munich 2017, ISBN 978-3-406-69559-9 .
- Peter Apathy , Georg Klingenberg , Martin Pennitz : Introduction to Roman law. 6th edition. Böhlau, Vienna / Cologne / Weimar 2016, ISBN 978-3-205-20294-3 .
- Alfons Bürge : Roman private law. Legal thinking and anchoring in society. An Introduction (Ancient Studies) . Scientific Book Society , Darmstadt 1999, ISBN 3-534-10095-6 .
Modern history of private law
- Franz Wieacker : History of private law in modern times with special consideration of the German development . 2nd Edition. Göttingen 1967, (1996, ISBN 3-525-18108-6 ).
- Ursula Floßmann , Herbert Kalb , Karin Neuwirth: Austrian history of private law . 7th edition. Verlag Österreich, Vienna 2014, ISBN 978-3-7046-6743-4 .
- Gerhard Wesenberg , Gunter Wesener : Modern German history of private law in the context of European legal development . 4th edition. Vienna / Cologne / Graz 1985, ISBN 3-205-08375-X .
- Hans Schlosser : Fundamentals of the modern history of private law. Legal developments in a European context . 10th edition. UTB, Heidelberg 2005, ISBN 3-8252-0882-6 .
- Volker Mayer: Commercial Law Volume 1, Legal Business Doctrine, Obligations, Commercial Transactions . 1st edition. Kohlhammer, Stuttgart 2015, ISBN 978-3-17-030513-7 , pp. 11 (footnote 1 to paragraph 10) and passim .
- Volker Mayer: Commercial Law Volume 1, Legal Business Doctrine, Obligations, Commercial Transactions . 1st edition. Kohlhammer, Stuttgart 2015, ISBN 978-3-17-030513-7 , pp. 123 ff .