Law

A. Basic principles:
1. Areas of law:
a. civil law based on civil codes.
b. public law
c. criminal law =criminal code
a1.—commercial law (a part of civil law) with the commercial code. The
basics are the civil codes and later proceeded with the regulations
and codes.

Civil law deals with the right of freedom of every citizen

2. Legal system:
In Germany : state law
In usa: judge-made law

Highest written norm in Germany is the basic law (=constitution)

Chapter 1 of basic law: Fundamental rights

---There are 20 fundamental human rights, like right to life, right
of the free choice of religious etc.

3. Approaches:
Constitutional conformity approach
Every statute must be conformed by the constitution. No matter
what it has been written by the state constitution it has to be conform
with the German national constitution.

4. Hierarchy of norms:
Constitution ---highest other statutes regulations by laws

16 federal states

5. Court system:
1. courts
a). European juriselichion (jurisdiction)
--first instance
--justice of the European community
b) constitutional courts
--federal constitutional court
--state constitutional courts
2. legal remedies
--appeal
--proceeding in error (order)
--request for relief

B. Civil law: (aka private law)

1. structure
--civil code (1900)
--book of general provisions
--book of law of obligations
--book of law of things
--book of law of the family
--book of law of succession

2. general provisions:
a. basics
5 books in civil code
a) Fundamental provisions, relating to person and things
b) Capacity to have rights and duties
Begins: completion of birth
Ends: death
c) Capacity to perform juristic acts
Begins: at its whole 18
Completely 18
Limited capacity: 7 to 18, the legal guardian has to act
Ends: death
Exceptions: 1. pocket money provision
2. legal benefit only

d) capacity to be liable in tort / liable

Begins: 7 years
Ends: death
e) declaration of will
--to distinguish this from a legal transaction
--we need at least one declaration of will( most two) to have a
legal transaction

-- desire to act
-- consciousness of declaration
-- the desire to enter a specific legal transaction
-- the declaration of will which does not require reception
Is taking legal effect if it is manifested
-- the declaration of will which requires reception to take legal
 effect
Has to be delivered to another party (e.g. another person )
after been manifested to take legal effect

f) The legal transaction:

(considering the principle of abstraction)
only in Germany, there are the principles of legal transaction.
distinguishes between legal transaction affecting rights in personen
obligation transaction and legal transactions affecting rights inren
disposition transaction
z obligation transaction:
legal transaction by which an obligation to do something is created=
obligation to perform ( these are usual contracts)
z disposition transaction:
legal transaction by which rights in a thing are involved

obligation transaction is the legal basis for the disposition

transaction

g) contract
most important legal transaction. A contract has two declarations
of will
a) offers: -- declaration of will
is a declaration of will which must be received by the other party
after manifested before taking legal effect.
Offeror proposes the conclusion of the contract to the other
party

b) acceptance:-- declaration of will

offeree has to assent to the proposal made be the offeror before
the specific contract come into existence
c) invitation ad offerendum :-- invitation to make an offer.

h) agency
a) legal transaction
„contract“
principal
third party
authorization
the agent acting in the name of the
agent principle

excurs: agent in commercial law/ code is the proceeist (procuee)

 the agent has to represent the principle

principal1 principal2

authorization authorization

agent1 agent2
action in the names of parties

the authorization is the most important requirement for an agency

it must be distinguished from a person acting as a messenger
an agent does make a declaration of will by her or his own, but on
behalf of the principle (messenger does not)

b) representation without authority

principal has two choices:
yes—ratify contract- valid or
no—still invalid contract
third praty
hold the supposed agent to contract
suing for damages.

3. law of obligations
1) general provisions:/ basics
„ second book of the civil code regulates basic obligation in
between person
„ an obligation is a legal relationship in terms of which one person
is entitled to demand a special performance of benefit from
another person, the so-called: debtor- creditor relationship
--debtor:
Person who owes performance
--creditor:
Person to whom performance is owed
(both are in the contract)

2) first principles
the good-faith principle: in terms of this principle the debtor is
obligated to perform the obligation without taking unfair advantage
on the creditor and vice versa in accordance with good faith and with
due regard to normal business practice!
 a) obligation:
where does it come from?
„ source in the law in statute
„ contracts
when does the obligation end?
an obligation is generally terminated by fulfillment

b) place of performance: debtor’s address

z the debtor is obligated to perform at the right place

c) time of performance: when creditor asks for it

d) performance by a third person: --accomplice or vicarious agent.
By making use of this kind of agent, the debtor is liable for
all wrongful acts just as if they were her or his own. – also
creditor can use that kind of agent.

e) Plurality of debtors and creditors.

f) Damages—material damage must do restitution in kind of
replacing the damage way or money

g) Defective performance: impossibility of performance

„ which debtor cannot perform
„ objective or subjective impossibility
„ initial or subsequent impossibility

*default of creditor or debtor:

---- debtor is late with performance day if damage is there +interest
of 5% over the basic rate of interest of the German bundes-bank
----creditor is late to get performance but liability for lost is
reduced, only not it quite negligence.

h) positive malperformance: not regulated in the civil code---good

faith principle
i) negligence in contracting: not regulated in the civil
code----good faith principle
j) special obligation
----contract of sale
----contract of donation
----contract of lease and loan
----contract of service
„ success not promised (contract of service)
„ success promised (contract for service)
k) other types of contracts
l) unjustified enrichment, if you have got something that not
 belongs you, you have to give it back
m) tort/ delict
--anyone who contrary to the law, deliberately or negligently
causes harm to the life, person health, liberty, property or
other rights of an another person has an obligation to compensate
that person for the resulting damage

4. law of things, aka law of property

1) ownership : legal and factual power of a person over a thing
2) possession: factual control of a person over a thing
3) limited real rights. Right to derive source advantages
from a special thing

Trade law
„ commercial law
„ corporate law
both are the part of civil law

1. commercial law
--commercial law regulates the relationships between business
people.
--specialization of the civil law---specific needs for the
commercial life
--business people need less protection
--greater freedom of contract
--speeding up, fasten things up
--special regulations and exceptions are needed
--commercial code: came into force by 1900. we have five books in
commercial code. They are:
1. people governed by its provisions
2. different types of business entity
3. books of account
4. commercial transactions between professional business
people
5. shipping law

1. people governed by its provisions

---business people
---business person: any person running a commercial enterprise
---agency in commercial life is named `procurator´
 ---procurator becoming by authorization from the owner of the
business or the owners representation.
Definition: authorization signatory of a company more rights,
more power than a civil law agent.
---commercial register at the amtsgericht(AG)
Two most important exceptions
---businessmen’s confirmation letter: letter from one
businessmen to another concerning the centers understanding of
an agreement. If other businessmen does nothing contracted ever
by changed offer. This binds both businessmen to the convert.
If objection, then as soon as possible.
---statutory inspection of delivered goods in the way
spot-checks

2. corporate law
aka law of the partnership
a) verein---register society, corporated association
----aktiengesellschaft (AG)
Public united company stock corporation
---Gresselschaft mit Beschänkter haftung(GMBH)
Limited liability company or closed cor.
---Kommoenditgesellschaft auf action (KGOA)
Commercial partnership limited by shares
---Genossenschaft (GEN)
Registered co-operative society
----Versicherungsverein auf gegen Seitigkeit(VvaG)
Insurance company in reciprocal agreement /treaty

b) Gesellschaft bürgerlichen Rechts(gbR)

---non- trading partnership , civil corp, company constituted
under civil law
1) gbr
2) Offene Handelsgesellschaft (OHG)
Partnership in commerce
3) Kommanditgesellschaft (KG)
Limited patnership
4) Stille Gesellschaft(StG)
Dormant partnership, slient partnership
5) Partnerschaft gesellschaft partner G)
Partnership