Indispensability
With indispensability , even unabdingbarem or mandatory law (lat. Jus cogens ) refers to a provision in a law , can not be derogated from by contractual agreement from. The opposite is the dispensable right .
function
Indispensable norms serve to ensure the security of legal transactions, protect the trust of third parties, prevent gross injustice and compensate for social imbalances.
Essential are z. B. Legal institutions that are subject to mandatory types . The ius cogens has a special meaning in international law , where it describes an indispensable minimum standard of human rights. The eternity clause in the Basic Law , according to which fundamental constitutional principles cannot be changed even by a majority that changes the constitution ( Article 79.3 of the Basic Law) and the fundamental rights guaranteed in their essence ( Article 19.2 of the Basic Law), have a similar meaning .
A certain fund of indispensable legal norms is necessary so that the legal system can fulfill its function of order and peace .
Importance in civil law
In contract law, indispensable provisions restrict the principle of private autonomy . Most contractual obligations can be waived, but property, family and inheritance law ( § 1518 BGB) is different .
The fact that a regulation is indispensable usually results from the wording, for example if a right "cannot be excluded or restricted by a legal transaction" or "cannot be circumvented by other arrangements" ( § 137 , § 306a BGB).
Regulations can only be partially indispensable, for example not to the detriment of an economically weaker contractual partner (e.g. not to the detriment of consumers, § 487 BGB), not at a certain point in time (not "in advance", § 202 , § 248 BGB) or not in a certain form (not by general terms and conditions , § 305 BGB).
Collective bargaining law can be changed in a collective agreement , but not in an employment contract . B. § 13 BUrlG or working hours deviating from the law ( § 7 ArbZG ).
literature
- Ernst Eypeltauer: Waiver and Indispensability in Labor Law , Manz, Vienna 1984, ISBN 3-214-06714-1 .
- Christoph Krummel: The history of the principle of indispensability and the principle of favorability in collective bargaining law , at the same time dissertation from the University of Cologne 1990, Frankfurt am Main, Bern, New York, Paris, Lang, 1991, Europäische Hochschulschriften = Publications universitaires européennes = European university studies, ISBN 3-631 -43175-9 .
Web links
- Michael H. Meub: Classification of legal norms and methods of interpretation in private law 2002
Individual evidence
- ↑ Claudia Kissling: Human Rights Minimum Standard Humboldt-Forum Recht, 2001, p. 81 ff.
- ^ Michael Coester: Primary principle of the collective agreement treatises on labor and commercial law 27, Heidelberg 1974
