Key historically developed layers of German AGB law

Abstract

The article is an attempt to outline the so called “AGB-Recht” of Germany in an unconventional way, and years of contemplation have left the author to think that this part of German law is nothing but an aggregation of historically developed layers which sustained their sway due to their practical significance, however do not constitute a coherent body of principles that causes numerous conflicts between adopted approaches, notwithstanding the fact that it is a minutely elaborated legal institute. The author commences analysis with general overview of norms and case law that influenced its development and turns to examination of each layer insofar as its influence is traceable in the law or in court practice. The author has to admit lacking coherency in a number of cases. Among others: no definite transition to abstract fairness of clauses control and underestimation of objective interpretation in this regard, disregard of the fact that the contract with standard terms consists of both individual and non-individual (superindividual) elements, hesitative attempts to bases solutions on prevention. Also, the institute reveals inefficiency when, on the one hand, stimulation of the parties using standard terms not to abuse their power to determine them is not effective, and on the other hand, fairness of clauses control accompanied by inadmissibility for the courts to restate clauses leaves them in total uncertainty as to which clauses could be used and making them to search for correct formula, sometimes for years. At the same time, protection of their counterparties is substantially diminished when clauses control leads only to exclusion of unfair clauses but practically lacks tools to supply the counterparty with additional rights when necessary. Since interpretative gap-filling barely solves this problem, the issue remains within the ambit of legislature that may imperatively supply the contracts with necessary additional rights and securities. The article delivers critical analysis of the institute and does not serve the audience as the source of all necessary references to case law and legal scholarship.

Keywords:

contract of adhesion, unfair contract terms, fairness of clauses control, good faith, interpretative gap-filling, private law prevention