Immorality (Germany)

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As a moral violation of moral standards that are not in is prohibition laws are positivized called. Because the existence of these moral standards is of such great importance for the legal community, the general clause of Section 138 (1) BGB orders the nullity of transactions that violate them (so-called purpose of elimination ). This applies, for example, to toggle contracts or other arrangements that restrict economic activity while exploiting positions of power. Another example, which is regulated separately in Section 138 (2) BGB , is usurious transactions .

Concept of immorality

Immorality is an indefinite legal term as a constituent feature , the material content of which is difficult to determine in a pluralistic society. In its interpretation, based on a formula of the Reichsgericht taken up by the Federal Court of Justice in the 1950s, the case law is based on whether the business in question violates "the decency of all those who think cheaply and justly ". In practice, the principles and values ​​that result from the general legal system are used for assessment . This is particularly true of fundamental rights . Mediated, among other things, by Section 138 (1) BGB, they have an indirect third-party effect and can thus also gain importance in the relationship between private individuals. The welfare state clause ( Art. 20 (1) GG , Art. 28 GG ) also affects the concept of immorality. If and to the extent that the decency of all those who think fairly and justly is used for interpretation, it depends on the average of the recognized standards within the group concerned, which is why particularly strict as well as particularly liberal views of individuals are not taken into account.

The legal reference of immorality to legal transactions must be separated from the general concept of morality . The concept of immorality does not primarily have a moral content and thus also does not have the social dimension of morality. A possibly immoral legal transaction is not necessarily immoral in the legal sense.

The immorality is closely related to the legal principle of good faith .

From the current law is a typical major premise as follows: "According to § 138 para 1 BGB is void a transaction if it was not for his from the summary of the content, purpose and motivation to be taken overall character with the basic votes of the legal and moral order. to be agreed is (...). This is to be assessed on the basis of a comprehensive overall assessment, taking into account all relevant circumstances at the time of the conclusion of the contract (...). From a subjective point of view, it is sufficient if the agent knows the facts from which the immorality results or if he deliberately closes himself off or withdraws from knowledge, on the other hand an awareness of the immorality and an intention to damage are not necessary (...). "

Legal consequences of immorality

Private law

If a legal transaction is immoral, it is considered null and void from the start according to Section 138 (1) BGB . This restricts the freedom of contract (so-called private autonomy , Article 2, Paragraph 1 of the Basic Law) and also the legal certainty , since the judicial review of legal transactions only ever takes place in retrospect. On the other hand, however, the interests of weaker contractual partners, especially legally inexperienced individuals (e.g. tenants, borrowers , guarantors ) and the interests of those not involved in the contract, such as the general public, are also regularly given special consideration.

Because of the abstraction principle applicable in German civil law , only the contract in which the circumstance justifying the immorality lies is void. However, several contracts are regularly concluded, for example by buying an item and then transferring ownership of the item to the buyer in a separate contract (who transfers the purchase price to the seller in a third contract). Regardless of the immoral contract, the other contracts remain in effect. Therefore, the borrower of an immoral loan agreement does not suddenly lose ownership of the loan amount disbursed. With the nullity of the loan agreement, however, there is no legal reason for the payment of the loan amount, so that it must be repaid in accordance with the provisions on unjust enrichment . Only in exceptional cases does the immorality of one contract affect the other contracts. For example, this can be assumed in the case of over- security through global assignment of claims. Here the further assignment justifies the over-security and immorality.

Other legal norms of civil law also refer to the violation of morals. In tort law , § 826 BGB grants a claim for damages in the event of intentional immoral damage; in enrichment law , § 819 BGB provides for increased liability on the part of the recipient of an immoral service.

Criminal law

In criminal law, immorality can render the consent to bodily harm ineffective, so that this justification does not apply ( Section 228 StGB) and the act becomes unlawful . The extent of the physical abuse or damage to health suffered by the victim and the degree of risk to life or limb associated with it are primarily decisive.

Administrative law

Section 44 (1) no. 6 of the Administrative Procedure Act (VwVfG) and the corresponding administrative procedurelaws ofthe federal states provide that an administrative act that offends against common decency is null and void. In this respect, it does not have any legal effects from the start and therefore does not have to bechallengedin opposition proceedings .

Individual examples of immorality

In literature and jurisprudence, an extremely extensive case history on immorality has developed. In the following, only individual examples can therefore be discussed.


Although general clauses require restrictive application, legal transactions relating to sexual behavior for remuneration were classified as immoral. This particularly affected the agreement between a prostitute and a client. Since the legal transaction according to 138 para. 1 BGB was considered null and void, a prostitute initially had no claim to payment. This claim was first introduced by the 2001 Prostitution Act grants (Prostitution Act).

According to a view widespread in civil law literature, the Prostitution Act could not repeal the immorality, but only grants an entitlement to wages after the sexual acts have been performed, despite the immorality of the contract. However, the highest court case law of the Federal Court of Justice takes the view, at least in criminal matters, that since the Prostitution Act was passed, a prostitution contract cannot be judged from the outset as immoral. According to the Berlin Administrative Court, prostitution was no longer immoral even before the Prostitution Act: “The state obligation to protect human dignity ( Article 1, Paragraph 1, Sentence 2 of the Basic Law) must not be misused by the individual by interfering with individual self-determination to protect from oneself as it were ”.

The European Court of Justice has made it clear that prostitution is one of the gainful activities that are “part of the community's economic life” within the meaning of Article 2 of the EC Treaty .


Loan agreements

Immorality has become very important in the granting of loans by banks and in securing loans . A loan agreement is considered immoral if there is a noticeable imbalance between performance and consideration and the lender consciously exploits the borrower's weaker position and recklessly ignores the fact that the weaker part is only submitting to its conditions because of its location. A conspicuous disproportion is usually assumed if the contractual interest rate exceeds the effective interest rate customary in the market by 100% or in absolute terms by 12 percentage points.

Loan security contracts

In addition to the possible immorality of the lending business itself, the extreme financial overstrain of relatives in securing loans, especially through guarantees and joint and several liability , has become of great importance. The supreme court 's understanding until 1993, that in the context of freedom of contract is also possible members to commit themselves and about their own financial capacity addition for credit transactions of relatives. A decision of the Federal Constitutional Court of October 19, 1993 then established that, within the framework of the indirect third-party effect of fundamental rights, it is incumbent on civil courts to review contracts for immorality if a structural inferiority of one part of the contract is recognizable and its contractual freedom is thereby impaired. The more recent case law therefore assumes that if a guarantee was given because of a strong emotional connection and the surety is grossly overburdened financially, a guarantee contract is immoral. Such excessive demands exist, for example, when it is unlikely that even the current credit obligations can be met. If there is such a financial overstrain, an actual, but rebuttable, presumption of an emotional connection is assumed.

New loans

Loans and collateral value must be in an appropriate relationship to one another. Customary bank discounts ( lending limits ) are accepted by case law; because assessment risks and uncertainties must be adequately taken into account. An original over- collateralisation exists if it is certain already at the time the security contract is concluded that a noticeable disproportion between the realizable value of the collateral and the secured claim will exist in the event of subsequent realization. Such inadequate overcollateralisation exists if the realizable collateral value of revolving global collateral in the event of liquidation permanently exceeds the loan amount by more than 10%. The overcollateralisation must also be based on a reprehensible attitude of the collateral taker . This can be assumed if “the buyer of security shows, for selfish reasons, a lack of consideration for the legitimate interests of the security seller, which is intolerable by moral standards”. The original overcollateralisation makes the security contract immoral if it is not compatible with morality at the time of its conclusion according to its overall character - which can be gathered from the summary of content, motivation and purpose.

Loan Collateral Management

Even in the case of loan repayments, the appropriate ratio to the value of the collateral must be maintained at all times, otherwise subsequent over-collateralisation occurs. In particular, assignment and transfer by way of security as non-accessory securities are subject to this risk due to the lack of automatic retransmission. If the collateral contract does not contain any express or an inadequate coverage limit, this limit is 110% of the secured claim based on the realizable value of the collateral.

However, the consumer law provisions of §§ 305 ff. BGB in particular suppress the banking law applications of this general clause; § 307 BGB as " Lex specialis " takes precedence over the general clause of § 138 BGB.

Further examples

Further examples of immorality are a “contract to commit a crime ”, “ bribery ”, an all too large disproportion between performance and consideration ( laesio enormis ) or the excessive exploitation of an economic position of power such as circumventing a ban on strikes with atypical means of industrial action through a sickness -out . With usury , a weakness of the contractual partner, for example his inexperience or a predicament , is often exploited.

Individual evidence

  1. RGZ 48, 114 (124)
  2. Bundestag, draft of a law to improve the legal and social situation of prostitutes, May 8, 2001, p. 4
  3. Consistent case law since BVerfGE 7, 198 ( Lüth judgment ), BVerfGE 6, 32
  4. BAG of June 29, 2016 - 5 AZR 617/15 - Rn. 31 = NZA 2016, 1152
  5. Federal Court of Justice: judgment of May 26, 2004, 2 StR 505/03 with detailed information on the immorality of the consent
  6. About Palandt / Heinrichs § 138 Rn. 52
  7. ^ BGH, decision of March 31, 2004 , Az. 1 StR 482/03
  8. ^ VG Berlin, judgment of December 1, 2000, VG 35 A 570.99. Archived from the original on July 8, 2007 ; Retrieved November 24, 2014 .
  9. ECJ v. November 20, 2001 - Case C-268/99, ECR 2001, I-8615
  10. Decision of October 19, 1993, Az. 1 BvR 567, 1044/89, BVerfGE 89, 214 = NJW 1994, 36. Archived from the original on July 8, 2007 ; Retrieved November 24, 2014 .
  11. Palandt / Heinrichs § 138 Rn. 38 ff .; see. on the history of legal development also: Roland Dubischar, processes that made history. Ten sensational civil trials from 25 years of the Federal Republic , Verlag CH Beck, Munich 1997, ISBN 3-406-42559-3
  12. BGH WM 1998, 248
  13. a b c BGH NJW 1998, 2047
  14. a b BGH WM 1998, 227
  15. BGH, judgment of January 31, 1978 - VI ZR 32/77 ( Memento of January 19, 2005 in the Internet Archive ) AP No. 61 to Art. 9 GG labor dispute