Normative references to reverse transaction systems in the German Civil Code – A systematic analysis

• Applicant: Privatdozentin Dr. Anne Christin Wietfeld
• Subject Area: Principles of Law and Jurisprudence
• Term: from 2020 to 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 439208187

It is generally assumed that the references within the German Civil Code (BGB) do not follow any system. The common opinion says their scope can only be determined for each reference individually. The aim of my studies was yet to uncover a system of the BGB refer-ences and to show that at least the scope of constitutive references to areas of reverse transaction systems in the BGB is determined by consistent rules. In order to be able to analyse all of the BGB’s reference provisions relating to reverse transactions on the basis of a consistent method, the consideration of the individual norms is preceded by a fundamental methodological examination of the normative reference as a legal technique. The subsequent analysis of the individual references to the law of enrichment and the rules of rescission has revealed that the references to these sections of the BGB are actually based on a system. The references to the unjust enrichment are either declaratory references to the legal conditions or constitutive references to the legal consequences. The provisions that contain references to the legal consequences are to be classified as entitlements of unjust enrichment although they are regulated outside the title on unjust enrichment in the BGB, which is extraordinary. Due to the recurrent references to these sections, the enrichment law has a similar effect on the reference norms in question as a general part of a code of law normally has. The objections and defences under enrichment law (§§ 813, 814, 815, 817 S. 2, 821 BGB) are therefore applicable to these, although they are not covered by the references to the legal consequences to the law of enrichment, which only refer to §§ 818-820, 822 BGB. In the case of rescission, a distinction must be made between whether the constitutive reference refers to provisions justifying rescission or to the provisions on the consequences of rescission. The references to the consequences of rescission contain their own elements of a rule and basic legal consequences, similar to the references to the law of enrichment. For a more detailed definition of their legal consequence, they refer to §§ 346-348 BGB. Just like the rules on the legal con-sequences of unjust enrichment, the rules on the consequences of rescission establish a self-contained system of reversal. In case of a normative reference to these areas the com-plete system applies. Despite undeniable differences in the normative references to reverse transaction systems, which result from the different regulatory structure of the reference objects, the normative references to the legal consequences to these systems have the same function. They make use of the respective system of reversal which the reference objects specify. In this way, they create the legal consequence of the reference provisions. Therefore, the type of constitutive reference – as a reference to the legal conditions or to the legal consequence – can be determined by the reference objec

• DFG Programme: Publication Grants