BGB

Question 1

What is substantive law (materielles Recht) and which laws are 3 examples of substantive law

Answer 1

Substantive law (materielles Recht) governs the rights and obligations between multiple parties, as opposed to adjective, which covers the enforcement and implementation of said law.

Within the framework of substantive law, individual rights and responsibilities are specified, and the legal repercussions of actions are determined. This includes laws that define criminal offenses, the rights of individuals to contractual agreements, the protection of intellectual property, and the entitlements under social security law.

Examples:

• Handelsgesetzbuch (HGB): This is the German Commercial Code that outlines the rights and duties in business dealings and commercial activities, including company operations and trade regulations.
• Bürgerliches Gesetzbuch (BGB): The German Civil Code governs private law, including contracts, property rights, family matters, and inheritance, essentially outlining the legal relationships between individuals
• Strafgesetzbuch (StGB): The German Criminal Code defines what constitutes criminal behavior, detailing offenses and corresponding penalties, and underpinning the country’s criminal justice system.
• Straßenverkehrsordnung (StVO): These are the Road Traffic Regulations providing the legal framework for traffic conduct on German roads, detailing user responsibilities, signage, and rules of conduct during accidents.

Question 2

What is adjective law (formelles Recht) and which laws are examples of adjective law

Answer 2

Adjective law (formelles Recht) governs the application and enforcement of substantive law.

Adjective law includes all the rules designed to guide a court in hearing and determining a case. These rules dictate how a lawsuit or criminal charge proceeds from beginning to end. This encompasses how the court must be approached, how a legal complaint or charge must be formally presented, how evidence is to be introduced and evaluated, how facts are to be proven, and how the court’s decision is to be executed. Essentially, it’s the “how-to” manual for the legal system to ensure fairness and efficiency in the justice process.

Examples:

• Zivilprozessordnung (ZPO) - The Code of Civil Procedure in Germany, which governs the procedures for civil litigation.
• Strafprozessordnung (StPO) - The Code of Criminal Procedure in Germany, which establishes the procedures for criminal prosecution.
• Arbeitsgerichtsgesetz (ArbGG) - The Labour Courts Act, which lays out the procedures for settling labor disputes.

Question 3

What are the four principal levels of statutory law (geschriebenes Recht) in, and how are they structured in terms of hierarchy?

Answer 3

The four principal levels of statutory law, organized in a hierarchical structure, are as follows:

• Grundgesetz (GG) - Basic Law: All other laws must conform to the GG (§§ 70-82 GG).
• Bundesgesetze - Federal Laws: Statutes enacted by the Bundestag. These laws must comply with the Basic Law and cover areas expressly allowed by it. Federal laws take precedence over conflicting Land laws.
• Bundesverordnungen - Federal Ordinances: These are detailed administrative rules issued by federal authorities, based on and within the scope of authority granted by a statute. Regulations are used to fill in the details of broad legislative enactments and must be consistent with both the Basic Law and any enabling statutes.
• Landesverfassungen und Landesgesetze - State Constitutions and Laws: These are the laws and constitutions of the individual Länder. While they must comply with the Basic Law and federal legislation, they govern within the scope of powers not exclusively reserved for the federal government. State laws are also influenced by European Union law, which can supersede national law in areas of EU competence (in theory).

Question 4

What are the two primary components required for a practice to be considered Gewohnheitsrecht in a legal system?

Answer 4

The two primary components required for a practice to be considered Gewohnheitsrecht are long-standing practice (longa consuetudo) and legal conviction (opinio juris), meaning the belief that the practice is legally obligatory.

Question 5

How does Gewohnheitsrecht differ from statutory law in its creation?

Answer 5

Gewohnheitsrecht is created organically through consistent and general practice over time, recognized as legally binding by the community, whereas statutory law is written legislation passed by a legislative body.

Question 6

What principle allows judges to create Richterrecht in the absence of statutory law or when statutory law is ambiguous?

Answer 6

The principle that allows judges to create Richterrecht is the necessity to fill gaps in the law (Lückenausfüllung) or to interpret ambiguous laws, ensuring that every case can be resolved in a court of law.

Question 7

What takes precedence immediately after the Grundgesetz?

A) Bundesverordnungen
B) Landesgesetze
C) Bundesgesetze
D) Landesverfassungen

Answer 7

Bundesgesetze

Question 8

If a Landgesetz (State Law) comes in to conflict with a Bundesgesetz (Federal Law), what takes precedence, and where is this inscribed in the law?

Answer 8

Bundesgesetze take precedence, Art. 31 GG: “Bundesrecht bricht Landesrecht”

Question 9

What are the four methods of interpretation for law?

Answer 9

• Grammatical Interpretation (Grammatische Auslegung): This method involves analyzing the literal meaning of the words used in the statute. It looks at the language and grammar to understand the natural and ordinary meaning of the text.
• Systematic Interpretation (Systematische Auslegung): This method considers the context within which a provision is situated. It involves looking at the statute’s structure, the relationship between various provisions, and the overall legal system to determine the meaning of a particular provision.
• Historical Interpretation (Historische Auslegung): This method looks at the historical context and the legislative history of the statute. It involves examining the materials and documents that led to the enactment of the legislation, such as legislative debates, drafts, and committee reports, to understand the legislature’s intent.
• Teleological Interpretation (Teleologische Auslegung): This method is concerned with the purpose and the policy underlying the statute. It seeks to interpret the law in a way that furthers its aims and objectives, considering the law’s spirit and the problem it aims to solve.

Question 10

Which method of legal interpretation focuses primarily on the literal and natural meaning of the words used in a statute?

Answer 10

Grammatical Interpretation (Grammatische Auslegung): This method involves analyzing the literal meaning of the words used in the statute. It looks at the language and grammar to understand the natural and ordinary meaning of the text.

Question 11

According to § 92 GG, disputes are resolved by …

Answer 11

Judges (Richter).

Question 12

What does it mean to say that judges are independent (§ 97 Abs. 1 GG)?

Answer 12

Judicial independence means that judges are free to make decisions based only on the law and the facts of the case, without influence or pressure from the government or other outside sources.

Question 13

What does it mean to say that judges are bound by the law (§ 97 Abs. 1 GG)?

Answer 13

It means that judges must base their decisions solely on the relevant legislation and legal precedents, not on personal opinions, external directives, or other non-legal considerations.

Question 14

What does § 20 Abs. 3 GG mean in the context of passing legislation

§ 20 Abs. 3 GG:
(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.

Answer 14

That the legislation passed must be constitutional

Question 15

What does § 20 Abs. 3 GG mean in the context of courts making decisions

§ 20 Abs. 3 GG:
(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.

Answer 15

That the courts must interpret and apply the laws impartially, without favoritism or prejudice, and their decisions must be both legally correct and just.

Question 16

What are the 5 courts?

Answer 16

The 5 courts are:

• Financial courts (Finanzgerichte)
• Labour courts (Arbeitsgeriche)
• Social courts (Sozialgerichte)
• Regular courts (ordentliche Gerichte)
• General Administrative courts (Verwaltungsgerichte)

Mnemonic: FASOV

Question 17

Ordentliche Gerichte (Regular Courts) are divided in to 3 sections, which are …

Answer 17

Criminal, Civil and Family.

Question 18

Which are the three ways a court decision may be remedied?

Answer 18

Berufung (appeal), Revision (further appeal on points of law) and Beschwerde (complaint)

Question 19

Explain why the following is false:

In a Berufung (appeal), only the judgement is reexamined while in a Revision (further appeal on points of law) the facts are reexamined along with the judgement

Answer 19

A Berufung allows for a full rehearing of a case, which means that both the legal assessment and the facts can be reviewed and re-evaluated by the higher court.

On the other hand, a Revision is limited to a legal review of the lower court’s judgment. It does not involve a re-examination of the facts, but rather it is a review to ensure that the law has been

Question 20

(T/F) A Berufung (appeal) is always possible

Answer 20

False.

A Berufung has conditions such as the value of the judgement being more than 600 EUR (§ 511 Abs. 2 S.1. ZPO)

Question 21

In the context of BGB, what does Privatautonomie mean?

Answer 21

It means that the person can establish his legal relationships autonomously, i.e. independently, and according to their own will.

Question 22

What is the concept which stipulates that a person can choose if, and with whom to establish a contract with, as well as the decide the terms of said contract?

Answer 22

Vertragsfreiheit

Question 23

What is Rechtsfähigkeit?

Answer 23

It is the capacity to have rights and duties

Question 24

What are the subjects holding the right to have rights and duties (Rechtsfähigkeit) called?

Answer 24

Rechtsubjekten

Question 25

Rechtssubjekten can be either …. or …. persons

Answer 25

Nautral, Legal

Question 26

When does the Rechtsfähigkeit of humans begin, and where can this be found in the law? When does it end?

Answer 26

At birth, § 1 BGB, and it ends at death

Question 27

Is an eingetragener Verein (e.V., Association) a legal person?

Answer 27

Yes

Question 28

Partnerships are not legal persons. List three partnerships which are not legal persons.

Answer 28

Here are three forms of partnerships:

• Offene Handelsgesellschaft (OHG) - General Partnership: An OHG is a commercial partnership where all partners have unlimited liability with their personal assets for the partnership’s debts.
• Kommanditgesellschaft (KG) - Limited Partnership: In a KG, there are two types of partners: at least one Komplementär (general partner) with unlimited liability and at least one Kommanditist (limited partner) whose liability is restricted to their capital contribution to the partnership.
• Gesellschaft bürgerlichen Rechts (GbR) or BGB-Gesellschaft: A civil law partnership where the partners come together to achieve a common purpose. It is the simplest form of partnership in German law and is governed by the provisions of the Bürgerliches Gesetzbuch (BGB), the German Civil Code.

Question 29

What is Geschäftsfähigkeit? Are all natural persons entitled to it?

Answer 29

It is the capacity to enter in to legal transactions through the (free) declaration of intent (Willenserklärung). Not all natural persons are entitled to it.

Question 30

What are 2 examples of natural persons who would be Geschäftsunfähig (incapable of contracting)?

Answer 30

An example is the following, § 104 BGB

A person is incapable of contracting if:

1. the person has not yet attained the age of seven years,
2. the person is in a state of pathological mental disturbance, which prevents the free exercise of will, unless the state by its nature is a temporary one.

Question 31

What are the three inner elements of a Willungserklärung?

Answer 31

Mnemonic: DCD

1. Desire to act (Handlungswille)
2. Consciousness of declaration (Erklärungsbewüsstsein)
3. Desire to enter the specific legal transaction (Geschäftswille)

Question 32

What are four forms of presenting a contract?

Answer 32

1. Written Form
2. Electronic Form
3. Text Form
4. Notarial Accounting

Question 33

Explain the difference between written and text form of presenting a contract.

Answer 33

The written form requires signature, while the text form does not. Text form can be fulfilled by email, fax, or other electronic formats that do not include a handwritten signature. The text form is intended to provide proof of the declaration and is often used for less formal agreements or where the law specifically allows for the text form to be used, such as in revocations, cancellations, or certain types of contracts.

Question 34

Give an example of a unilaterial transaction

Answer 34

A cancellation

Question 35

When is an offered contract no longer considered binding to the person offering it

Answer 35

1. It was rejected
2. It was modified
3. One of the periods of acceptance is exceeded (i.e. person(s) receiving it took too long to accept it)

Question 36

What is invitatio ad offerendum, and is it legally binding as an offer?

Answer 36

It’s “an invitation to offer”, and is not legally binding, as it is not a contract. For example, prices listed on a website are invitatio ad offerendum, and they are not binding.

Question 37

What is an obligation transaction, and what is a disposition transaction

Answer 37

Obligation Transaction (Verpflichtungsgeschäft)
This refers to the legal transaction that creates an obligation between parties. It is the contractual agreement in which parties enter into a contract and agree to transfer a right or item. For example, when you agree to buy a car, the contract you sign with the seller is the obligation transaction. It defines the mutual obligations: the seller’s obligation to transfer ownership of the car and the buyer’s obligation to pay the agreed-upon price.

Disposition Transaction (Verfügungsgeschäft)
This is the legal transaction that actually transfers the right or item from one party to another. It’s the execution of the obligation created by the obligation transaction. Using the car purchase example, the disposition transaction occurs when the seller hands over the keys and the buyer takes possession of the car, or when the seller officially transfers the title to the buyer.

Key Points:
The obligation transaction creates a legal duty to perform (like transferring ownership), but it doesn’t transfer any rights by itself.
The disposition transaction is the act that executes the transfer and changes the legal status (ownership, possession, etc.).
Under the Abstraktionsprinzip, the validity of the disposition transaction is independent of the obligation transaction. This means that even if the contract (obligation transaction) is invalid, the transfer of rights or property (disposition transaction) may still be effective, and vice versa.

Question 38

Given a void obligation transaction (e.g. due to illegality, § 134 BGB), are the associated disposition transactions still valid?

Answer 38

Yes. Under the Abstraktionsprinzip, the validity of the disposition transaction is independent of the obligation transaction. This means that even if the contract (obligation transaction) is invalid, the transfer of rights or property (disposition transaction) may still be effective, and vice versa.

Question 39

What are the three elements required for a Stellvertreung to be valid?

Answer 39

1. Own declaration of will of the agent: The agent has limited moving room, as opposed to a bote which has none
2. In the name of the principle: The agent must clearly state that he is acting on behalf of another, as opposed to himself
3. Power of agency: Vollmacht or statutory provisions

Question 40

What type power of agency does a parent half on behalf of a child for a Stellvertretung

Question 41

Anna, an independent graphic designer, signs a contract with a tech startup to create a new logo and branding materials. The contract stipulates that Anna will design a logo, business cards, and a website header. Additionally, she agrees to provide three rounds of revisions for each design and ensure that all designs are delivered in both high-resolution and web-optimized formats. During the project, Anna also advises the startup on color schemes that are more accessible for colorblind individuals, a point not mentioned in the contract.

Based on this scenario, identify examples of Hauptleistungspflichten, Nebenleistungspflichten, and Nebenpflichten. Explain why each identified obligation falls into its respective category

Answer 41

Hauptleistungspflichten: These are the main performance obligations directly arising from the contract. In this scenario, the design of the logo, business cards, and website header, as well as the provision of three rounds of revisions for each design, are Hauptleistungspflichten. These are the central services Anna was contracted to provide.

Nebenleistungspflichten: These are secondary obligations necessary for the fulfillment of the Hauptleistungspflichten but not central to the contract’s purpose. The obligation to deliver all designs in both high-resolution and web-optimized formats falls under Nebenleistungspflichten. These tasks support the main obligation (design work) but are secondary in nature.

Nebenpflichten: These obligations do not arise directly from the contractual agreement but are based on broader legal principles or ethical standards. Anna’s advice on color schemes for accessibility to colorblind individuals is an example of Nebenpflichten. This advice goes beyond the contract’s stipulations, showcasing an adherence to broader professional standards and care for the client’s needs.

Question 42

Can a debtor make use a third person to perform the obligation?

Answer 42

Yes, § 267 BGB

Question 43

When do your contractual obligations end?

Answer 43

At fulfilment