Script B Flashcards
Freedom of Contract
Most of the legal provisions found in the second book of the CC contain
only proposals for the content of a contract. If the contracting parties wish to deviate from them by neutral agreement, they can in principle do so
What are such regulations also called and why?
(Question 1)
Disposative because they are at a disposal of contracting parties
What does the principle of freedom of conclusion mean?
The contracting parties can decide for themselves whether or not to conclude a contract
What does the principle of freedom of content mean?
The contracting parties can decide for themselves
which contractual conditions they want
What does the principle of freedom of form mean?
The contracting parties can decide for themselves what form (written or oral) the contract should take
In which case do the courts exceptionally affirm a legal obligation to conclude a contract (“obligation to conclude”) (826 BGB)?
The courts regularly do not grant a monopoly provider freedom to conclude a contract in order to not discriminate the clients needing the goods or services of this provider
Unless the special laws intervene, the obligation to conclude a contract is derived from the prohibition to…
intentionally inflict damage on another person under Section 826 CC
Mandatory legal provisions, from which the contracting parties may not deviate, are found in particular for the protection of:
- Consumers
- Employees
- Tennants
A guarantee is quickly “promised.” A legally required written form, for example, protects the individual from the hasty conclusion of a legal transaction. Here, the form has a
warning function
A legally prescribed notarial certification ensures that the citizen receives neutral legal advice on the legal transaction and its effects. Here, the form has a
consulting function
After all, written agreements, for example, are easier to prove in the event of a dispute than those that have only been made orally. Here, the form has a
proving function
