Reasonableness
The reasonableness is an indefinite legal term in many areas of law and is determined by weighing the mutual interests of different legal subjects . The basic rights of the person concerned are to be included in the weighing .
General
The appropriateness of a requirement for behavior is considered reasonable . In law, what is reasonable is always about the fact that an appropriate balance of interests can take place between the contracting parties . Since the legal entities as individuals represent and perceive very different interests, they must take the interests of the other contracting party into account if the contract is not to suffer from the unilateral interests of only one party. Rather, it must be possible to expect the other party to fulfill its obligations.
If these prerequisites are not met, the law speaks of unreasonableness . The unreasonableness of a duty presupposes the possibility of its fulfillment. However, according to Heinrich Henkel, reasonableness or unreasonableness does not have a normative effect , but only regulative .
Legal issues
civil right
In civil law , for example, the termination of a legal relationship depends on the fact that adherence to the contract is no longer reasonable for the person concerned after weighing up the mutual interests . According to Section 314, Paragraph 1 of the German Civil Code (BGB), this applies to the termination of long-term obligations (such as an employment contract , loan agreement , rental agreement , lease agreement , credit agreement ) for an important reason that must always be unreasonable.
When frustration of contract situation must be according to § 313 para. 1 BGB the circumstances which have become the agreement, have changed seriously after the conclusion and the parties had concluded the contract or not with other content if they had foreseen this change, so can Adaptation of the contract may be requested if one part, taking into account all the circumstances of the individual case, in particular the contractual or statutory risk distribution, cannot be expected to adhere to the unchanged contract.
In the impossibility can the debtor does not fulfill his duty to the reasonableness contrast needs he does not fulfill them, even if he could. The proportionality is a "factual, functional principle," the reasonableness, however, a "subject-related, individualizing scale".
Employment Law
In labor law , a can a worker on the existing obligation to work to a conflict of duties due to the care and custody of their child ( § 1627 BGB ) and thus a right to refuse performance or unreasonableness of performance only appointed if the legitimate to consider interests regardless of the necessary in each case considering both Contracting parties are in a predicament through no fault of their own.
An extraordinary termination is permissible if the terminating party cannot be expected to continue the employment relationship ( Section 626 (1) BGB).
Social law
According to Section 2 of the Second Book of the Social Code , those affected who are capable of work and who receive basic security benefits for jobseekers must exhaust all options for ending or reducing their need for assistance. An employable person entitled to benefits must actively participate in all measures for their integration into the labor market , in particular concluding an integration agreement. If gainful employment on the general labor market is not possible in the foreseeable future, the employable person entitled to benefits must take on a reasonable job opportunity offered to them. The reasonableness clause of § 10 SGB II establishes the basic rule that any work is reasonable for an employable person entitled to benefits and makes five exceptions (for example because they are physically, mentally or emotionally incapable of the particular work). Section 2 (5) of the Third Book of the Social Code requires that, in order to avoid or end unemployment, employees must , in particular, continue or take up a reasonable employment relationship. In accordance with Section 140 (1) SGB III, an unemployed person can be expected to do all of the jobs that correspond to their ability to work , as long as general or personal reasons do not conflict with the reasonableness of employment ( reasonableness rule ).
When assessing the reasonableness, the freedom of occupation of the person concerned must be taken into account, Article 12 (1) of the Basic Law.
Criminal law
The Reichsgericht (RG) dealt in September 1888 with the reasonableness of a false act of omission . The consideration of the exemption from the legal obligation to act under abnormal circumstances means nothing other than an acknowledgment of the reasonableness as part of the omission test. If action or tolerance is unreasonable, a criminal excuse may exist. The reasonableness applies to many criminal offenses, such as omission offenses . Accordingly, anyone who does not provide help in the event of an accident or common danger or emergency , although this is necessary and can be expected of him under the circumstances, is deemed to have failed to provide assistance in accordance with Section 323c of the Criminal Code . In the case of crimes of negligence, there is always no charge of guilt if alternative action was not reasonable in the actual situation.
The reasonableness also plays a role in § 35 StGB ( state of emergency ), § 113 Abs. 4 StGB ( resistance against enforcement officers ), § 142 Abs. 3 StGB ( accident escape ). In criminal procedural law , the examination of other persons is not permitted in accordance with Section 81c (4) StPO if it cannot be expected of the person concerned after considering all the circumstances.
Environmental law
According to the Federal Immission Control Act (BImSchG), plants that require approval must be operated in such a way that waste is avoided. They cannot be avoided if avoidance is technically not possible or unreasonable ( Section 5 (1) No. 3 BImSchG).
International
In Austria , reasonableness is also a legal term. For example, the maintenance claim of a parent or grandparent is reduced in accordance with Section 234 (3) ABGB to the extent that it is reasonable for them to use their own assets. What is reasonable for the injured party within the scope of the duty to minimize damage according to § 1304 ABGB and § 1325 ABGB is determined by the interests of both parties and the principles of honest dealings. Whether the state of a path is flawed, directed according to § 1319a , para. 2 ABGB by what on the nature of the way, especially after its dedication is appropriate and reasonable for its investment and support.
In Switzerland , reasonableness is also a legal term that relates to renewal or changes to the rental property in Art. 260 Paragraph 1 OR , the reasonableness of overtime work in Art. 321c OR , or the termination of an employment relationship in Art. 337 Paragraph 2 OR for important reasons because of unreasonableness. In Family Law regulates Art. 124d CC that when unreasonable due to a consideration of the provision needs of both spouses of committed Spouse the legitimate spouses a lump-sum payment owed. According to Art. 276 of the Civil Code, the parents are exempted from the obligation to provide maintenance to the extent that the child can be expected to provide maintenance from their work or other means. While the assessment of the reasonableness according to Art. 277 (2) ZGB is a legal question , the underlying specific circumstances are questions of fact .
Web links
- Reasonability - Duden Law A – Z at BPB
Individual evidence
- ^ Carl Creifelds , Creifelds Legal Dictionary , 21st edition, 2014, p. 1615, ISBN 978-3-406-63871-8
- ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 479
- ↑ Jörg Lücke, The (un) reasonableness as a general limit of public-law obligations , 1973, p. 46
- ^ Heinrich Henkel , Reasonability and Unreasonableness as a Regulative Legal Principle , in: Karl Engisch / Reinhart Maurach / Paul Bockelmann (eds.), Festschrift for Edmund Mezger, 1954, p. 249
- ^ Heinrich Henkel, Reasonability and Unreasonableness as a Regulative Legal Principle , in: Karl Engisch / Reinhart Maurach / Paul Bockelmann (eds.), Festschrift for Edmund Mezger, 1954, p. 249
- ↑ Jörg Lücke, The (un) reasonableness as a general limit of public-law obligations , 1973, p. 45
- ↑ Michael Ch. Jacobs, The Principle of Proportionality , 1985, p. 94
- ↑ BAG, judgment of May 21, 1992, Az. 2 AZR 10/92 = BAGE 70, 262
- ↑ Christian Armborst, § 10 SGB II Rn. 51 with further references in: Johannes Münder (Ed.): Sozialgesetzbuch II. Teaching and Practice Commentary . 6th edition. Nomos. Baden-Baden 2017. ISBN 9783848719990
- ^ RG, judgment of September 27, 1888, RGSt 18, 96, 98
- ^ OGH , judgment of October 25, 1970, reference number 2 Ob 210/70
- ^ BG , judgment of May 29, 2015, Az .: 5A 179/2015
