Civil law: Comprehensive guide and legal advice

Civil law is an essential part of the German legal system and affects numerous aspects of everyday life. It regulates the legal relationships between natural and legal persons in private matters such as the conclusion of contracts, claims for damages, inheritance matters and many other areas.

As a client of a law firm, it can be very helpful to have a basic understanding of civil law in order to be successful in legal disputes and negotiations. In this text, we will therefore give an overview of civil law and explain some important aspects.

Table of contents

1. What is civil law?
2. Contract law
3. Tort law
4. Family law
5. Inheritance law
6. Property law
7. Labour law
8. Tenancy law
9. Other areas of civil law
10. Current court decisions and developments
11. Legal advice in civil law

What is civil law?

Civil law, also known as private law, is a field of law that regulates relations between natural and legal persons. It covers a variety of legal matters and is codified in different codes. In the following, we will explain some of the most important aspects of civil law in more detail:

Civil Code (BGB): The BGB is the central code of German civil law and is divided into five books: General Part, Law of Obligations, Law of Property, Family Law and Law of Succession. It contains basic regulations for contracts, property, liability, family relations and inheritance.

Commercial Code (HGB): The HGB regulates commercial law and is of particular importance for merchants. It contains regulations on commercial transactions, commercial companies, commercial register entries, commercial agents and other aspects of commercial law.

Other laws: In addition to the BGB and the HGB, there are a large number of other laws that regulate civil law matters. Examples include the German Condominium Act (Wohnungseigentumsgesetz, WEG), labour law, tenancy law, copyright law and company law.

Some important legal concepts and principles of civil law are:

Legal capacity: the ability to be the bearer of rights and obligations. Natural persons have legal capacity from birth, while legal persons acquire their legal capacity by registration in the Commercial Register or another register.

Legal capacity: The ability to make legal declarations and conclude legal transactions independently. Natural persons acquire full legal capacity when they reach the age of majority (18 years), while minors from the age of 7 have limited legal capacity.

Declarations of intent: Legal transactions are based on declarations of intent by the parties involved. These can be made expressly or tacitly and must meet certain requirements to be effective.

Contracts: A contract is a legal transaction in which two or more parties agree to create, modify or terminate certain rights and obligations. Contracts can be concluded in writing, orally or by conclusive conduct.

Liability: In civil law, persons can be held liable for damage they cause to others. Liability may arise due to breach of contract (contractual liability) or tort (tortious liability)

Contract law

Contract law is a central component of civil law and regulates the formation, execution and termination of contracts. It is codified primarily in the German Civil Code (BGB), although special statutory regulations, such as those in the German Commercial Code (HGB), also play a role. Some important aspects of contract law are explained below:

1. freedom of contract: freedom of contract is a fundamental principle of contract law and includes freedom of conclusion (the freedom to conclude a contract or not), freedom of formation (the freedom to determine the content of the contract) and choice of partner (the freedom to choose the contractual partner).
2. Conclusion of contract: A contract is concluded by two concurrent declarations of intent (offer and acceptance). The declarations of intent can be made expressly or impliedly. Oral, written or electronic forms of contract conclusion are permissible, unless a special form is prescribed.
3. types of contract: there are different types of contract, such as purchase contract, rental contract, contract for work and services, service contract and loan agreement. Each type of contract is subject to specific rules in the Civil Code and, where applicable, additional laws.
4. Defects in performance: Impairments of performance can occur during the performance of the contract and include impossibility, debtor’s default, creditor’s default, default of acceptance and positive breach of contract. Depending on the type of default, different legal consequences arise, such as damages, rescission or reduction.
5. warranty and guarantee: In the case of material defects and defects of title, the seller is liable within the scope of the warranty. The statutory warranty period is two years from handover of the purchased item. A guarantee, on the other hand, is a voluntary assurance by a seller or manufacturer that a product will function for a certain period of time or under certain conditions.

Tort law

Tort law is another important area of civil law and regulates liability for damage caused by tortious acts. The regulations are mainly found in the German Civil Code (BGB), in particular in §§ 823 to 853. Some central aspects of tort law are presented below:

a) Fault-based liability: In German tort law, the principle of fault applies in principle, which means that a person is only liable for damage if he or she caused it intentionally or negligently. Negligence exists if the care required in traffic was disregarded.

b) Strict liability: In certain cases, liability can also arise independently of fault, e.g. in the case of the liability of the owner of a motor vehicle (§ 7 StVG) or in the case of the liability of the owner of an enterprise for operational hazards (§ 14 BImSchG).

c) Damages: The primary objective of tort law is to compensate for the damage caused through damages. In this context, damages can be in the form of in rem restitution (restoration of the original condition) or in the form of monetary compensation (compensation in money).

d) Contributory negligence: If the injured party himself has contributed to the occurrence or aggravation of the damage, contributory negligence may exist (§ 254 BGB). In this case, the claim for damages is reduced according to the shares of causation and fault.

e) Limitations and exclusions of liability: Tort law provides for limitations or exclusions of liability in certain cases, for example in the case of liability of supervisors (§ 832 BGB) or in the case of liability for auxiliary persons (§ 831 BGB).

Civil law: Family law

Family law is another important area of civil law and regulates the legal relationships of persons who are connected by marriage, civil partnership, kinship or adoption. It includes various aspects such as marriage, divorce, maintenance, custody, rights of access and adoption. In the following, we will take a closer look at some of the most important areas of family law.

• Marriage and prenuptial agreements: A marriage is the legal act of entering into a marriage between two people. Before or during the marriage, the spouses can conclude a marriage contract to regulate their property relations. This may concern, for example, the matrimonial property regime, the equalisation of pensions or the equalisation of gains.
• Divorce: The termination of a marriage takes place through a divorce. Here, the legal and financial aspects of the separation are clarified, such as the division of joint assets, maintenance payments and pension equalisation.
• Maintenance claims: In family law, various maintenance claims can exist, such as spousal maintenance, child maintenance or parental maintenance. The amount of maintenance depends on various factors, such as the neediness of the entitled person and the ability of the obligated person to pay.
• Custody and right of access: In the case of minor children, custody is a central issue in family law. It includes the legal representation of the child, the determination of the residence and the care of property. The right of access regulates contact between the child and the parents if they live separately.
• Adoption: Adoption is the legal adoption of a person as a child by an adult. It leads to the establishment of a parent-child relationship and has legal consequences, such as maintenance and inheritance claims.

Inheritance law

The law of succession is another important area of civil law and regulates the transfer of assets and liabilities of a deceased person (testator) to his or her heirs. It is codified primarily in the BGB (Book 5). Some central aspects of the law of succession are outlined below:

Legal succession: If the deceased does not leave a will or contract of inheritance, the legal succession comes into force. Here, the inheritance is distributed according to degrees of relationship, whereby spouses and registered civil partners enjoy separate regulations. The legal succession is divided into different orders, the closer the relatives are to the testator.

Types of will: A will is a testamentary disposition by which the testator designates his or her heirs and/or orders legacies and stipulations. There are different types of wills, such as the personal will, the notarial will and the joint will (e.g. the Berlin will).

Compulsory portion: The compulsory portion is a legally guaranteed minimum share of the inheritance for close relatives (children, spouses, parents) who have been disinherited by a will or inheritance contract. The compulsory portion amounts to half of the legal share of the inheritance and is a purely monetary claim.

Inheritance tax: Inheritance tax is a tax payable on the acquisition of assets by inheritance or gift. The amount of tax depends on the value of the acquisition and the degree of relationship between the testator/donor and the acquirer. There are tax allowances and different tax brackets.

Estate settlement: Estate settlement is the process by which a community of heirs divides up the inheritance and the heirs receive their individual shares. This can be done through a contractual agreement or, if no agreement is reached, through a judicial partition auction.

Civil law: Property law

Property law is an important area of civil law and regulates the legal relationships to physical objects (things). It is codified primarily in the German Civil Code (BGB) (Book 3) and includes the regulations on ownership, possession, real property and rights in rem. Some central aspects of property law are presented below:

Property and acquisition of property in civil law

Ownership is the most comprehensive right that can exist in a thing. The owner has the right to use, change or sell the thing at will. The acquisition of property takes place through agreement and transfer (transfer of ownership) or through legal provisions (e.g., acquisitive prescription, acquisition in good faith).

Possession

Possession is the actual control over a thing. The owner has the right to use the thing temporarily and to protect it from interference by third parties. Possession and ownership can diverge, e.g. in rental or loan situations.

Land law

Land is of particular importance in property law because it is entered in the land register. The land register is a public register that documents the legal relationships to real property, e.g. ownership, mortgages and easements.

Civil law: Rights in rem

Rights in rem are special rights to property that are effective against everyone. Rights in rem include, for example, usufructuary rights, land charges, mortgages and easements.

Legal remedies in property law and civil law

In property law, there are various legal remedies to protect the rights of the owner or possessor. These include the action for restitution, the action for protection of possession and the action for ownership (Rei vindicatio).

Labour law

Labour law is a branch of civil law that regulates the legal relations between employers and employees. It is anchored in various laws such as the Civil Code (BGB), the Dismissal Protection Act (KSchG), the Working Hours Act (ArbZG) and the Federal Holiday Act (BUrlG). Some central aspects of labour law are presented below:

1. employment contract: The employment contract is the basis of the employment relationship and regulates the rights and obligations of employer and employee. It can be concluded for a limited or unlimited period of time and contains provisions on working hours, remuneration, leave and termination.

2. Protection against dismissal: The protection against dismissal serves to protect employees against arbitrary or socially unjustified dismissals. The Dismissal Protection Act applies if the employment relationship has existed for more than six months and the enterprise is of a certain size. It distinguishes between dismissals based on personal reasons, behavioural reasons and operational reasons. 3.

3. Working hours and holidays: The Working Hours Act regulates the permissible working hours, break regulations and rest periods. The statutory maximum working time is usually eight hours per day. The Federal Holiday Act grants workers a statutory minimum holiday entitlement of 20 days in a five-day week.

4. occupational health and safety: Occupational health and safety includes regulations to protect the health and safety of workers in the workplace. This includes regulations on the design of workplaces, the use of work equipment and personal protective equipment.

5. collective bargaining law: collective bargaining law regulates the legal relationships between the parties to collective agreements (trade unions and employers’ associations) and the validity of collective agreements for the employment relationships of those bound by collective agreements. Collective agreements can contain regulations on wages, working hours, holidays and other working conditions.

Tenancy law

Tenancy law is another branch of civil law and regulates the legal relationships between landlords and tenants. It is mainly anchored in the German Civil Code (BGB), in particular in §§ 535-580a BGB. Some important aspects of tenancy law are outlined below:

Tenancy agreement

The tenancy agreement is the basis of the tenancy and regulates the rights and obligations of landlord and tenant. It contains regulations on rent, ancillary costs, security deposit, cosmetic repairs, termination and other aspects of the tenancy.

Tenancy protection and civil law

Rent protection serves to protect tenants from excessive rent demands and arbitrary terminations. This includes regulations on the rent brake, protection against dismissal and the social clause.

Operating costs

Operating costs are the costs incurred by the landlord in running a rental property. These include costs for heating, water, refuse collection and maintenance. Operating costs can be passed on to the tenant if this has been agreed in the tenancy agreement.

Civil law: Termination

The tenancy can be terminated with notice (legal notice) or without notice (extraordinary notice). Ordinary notices of termination must be justified, e.g. due to the landlord’s own needs or breaches of contract by the tenant. Termination without notice is only permissible in the case of serious breaches of contract.

Defects and rent reduction

If the rented property has defects which impair its use in accordance with the contract, the tenant has the right to reduce the rent appropriately. The landlord is obliged to remedy the defect unless he is excluded from the warranty obligation.

Other areas of civil law

In addition to the areas of law already covered, civil law has other important areas that affect daily life and interactions between individuals and businesses.

These include tort law, which is responsible for claims for damages for tortious acts such as negligence or bodily injury, data protection law, which regulates the protection of personal data, and travel law, which clarifies the legal relationship between travellers and tour operators or providers.

Furthermore, sales law is responsible for the legal framework of sales contracts, while consumer protection law aims to protect consumers from unfair business practices. Finally, competition law deals with the regulation of market behaviour and the protection of fair competitive conditions for all market participants.

Recent court rulings and developments: civil law

This section presents some recent court judgments and developments in various areas of civil law. These judgments and developments can deepen the understanding of the respective areas of law and serve as examples for the application of laws and principles in practice.

Contract law

BGH, judgement of 15.02.2022 – XI ZR 111/21: The Federal Court of Justice ruled that banks may not charge processing fees when granting consumer loans, as these violate the prohibition of ancillary price agreements.

Tort law

BGH, judgement of 25.01.2022 – VI ZR 104/21: The Federal Supreme Court held that a motorist who causes an accident with a vehicle parked at the side of the road is in principle solely liable, unless there are special circumstances that justify joint liability of the vehicle owner.

Family law

BVerfG, decision of 16.11.2021 – 1 BvR 1611/21: The Federal Constitutional Court ruled that a regulation requiring a spouse to change his or her surname after a separation is unconstitutional, as it violates the right to personality and the right to equality.

Inheritance law

BGH, judgement of 12.10.2021 – IV ZR 103/20: The Federal Supreme Court ruled that a joint will in which the spouses appoint each other as sole heirs is generally binding even if it was made after the spouses separated.

Property law

BGH, judgement of 24.11.2021 – V ZR 67/21: The Federal Supreme Court ruled that a property owner is generally liable if roots of a tree emanating from his property cause damage to neighbouring properties.

Labour law

BAG, Judgment of 26.10.2021 – 9 AZR 15/21: The Federal Labour Court ruled that a works agreement granting employees a supplement for night work does not violate the prohibition of discrimination under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) if it is objectively justified.

Civil law: Tenancy law

BGH, judgement of 15.09.2021 – VIII ZR 3/21: The Federal Supreme Court ruled that a clause in a tenancy agreement imposing an unreasonable maintenance obligation on the tenant may be invalid if it unreasonably disadvantages the tenant.

Data protection law

BGH, judgement of 18.01.2022 – VI ZR 62/21: The Federal Supreme Court ruled that a company that processes personal data without the consent of the data subject must pay damages if the data subject suffers material or immaterial damage as a result.

Travel law

BGH, judgement of 08.06.2021 – X ZR 58/20: The Federal Supreme Court ruled that a tour operator must inform its customers in good time of a significant change in flight times in order to comply with its duty to inform under section 651a(4) BGB.

Right of purchase

BGH, judgement of 12.05.2021 – VIII ZR 3/20: The Federal Supreme Court ruled that a buyer who has purchased a defective item must first request the seller to provide subsequent performance before he can claim damages. An exception exists if the subsequent performance is unreasonable or impossible.

Consumer Protection Law

BGH, judgement of 14.07.2021 – VIII ZR 36/20: The Federal Court of Justice ruled that a clause in the general terms and conditions of a mobile phone provider that provides for automatic contract renewal may be invalid if it is not transparent and unreasonably disadvantages the consumer.

Competition law

BGH, judgement of 23.02.2022 – I ZR 193/20: The Federal Supreme Court ruled that a company that publishes misleading advertising can be held liable for injunctive relief if the advertising is likely to influence competition to the detriment of consumers or other market participants.

The court decisions and developments listed underline the diversity and complexity of civil law. It is therefore advisable to contact an expert in civil law who is familiar with the current developments and judgements and can provide individual advice and support in case of legal questions and problems.

Legal advice in civil law

Civil law is of great importance in the German legal system and influences daily life in many ways. It covers a wide range of legal areas that regulate the relationships between natural and legal persons. A basic understanding of civil law is advantageous in order to be successful in legal disputes.

The Herfurtner law firm has experienced lawyers who can assist you in the various areas of civil law. We will be happy to help you assert your rights and protect your interests in civil law matters. Contact us for competent legal advice and individual support.

Wolfgang Herfurtner | Lawyer | Managing Director | Shareholder

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