Protection by Rules and Standards in Private Law

• Applicant: Privatdozent Dr. Stephan Seiwerth
• Subject Area: Private Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 538125315

Who wants regulations that do not do justice to the particularities of the individual case and the actual purpose of the regulation? Law-makers, law-applicants and law-subjects probably agree that this would not be "good legislation". However, rules that typify are by definition characterised by their lack of justice in individual cases - and not only that: it is a matter of a systematically brought about non-achievement of the intended regulatory purpose, the deliberate ignoring of actually relevant circumstances of the individual case, an injustice in the individual case with certainty. Nevertheless, substantial innovations in contract law since the entry into force of the German Civil Code in the form of the protection of tenants, employees, consumers, opponents of clauses and insurants have made use of this regulatory technique to such an extent that one could speak of a "social model of protection by rule". Protecting by using rules instead of standards has the effect, for example, that lawyers specialising in consumer protection law can claim that they have not been properly informed about a consumer right of revocation, that professional players in the Bundesliga are protected as employees while receiving constant legal advice and earn-ing millions of euros, and that the wealthy tenant of her third flat benefits from social tenancy law, on the other hand, small craft enterprises cannot revoke burdensome loan agreements even if they were taken by surprise when the contract was concluded, economically dependent crowd workers or solo self-employed persons are regularly not employees, and small traders are only marginally protected from the termination of their commercial lease. Recently, the "personalisation" of law, made possible by digitalisation and artificial intelligence, promises a way out. By analysing "big data", a personalisation of norms is to be made possible by adapting the legal requirements to the personality characteristics of the respective norm addressees. The study examines the legal technique of using rules and standards (the "how") to achieve goals of protection in private law, especially in contract law, from a legal-theoretical, legal-economic, comparative, legal-historical, legal-dogmatic and legal-political perspective. In this context, the study also considers legal policy demands for a formulation of (social) protection in private law that is at the same time consistent with the system of the current German Civil Code, serves freedom, is appropriate to individual cases and is easy to apply in practice, which, if European and German legislation falls short of this demand, complain of a decline in the art of lawmaking in general and disruptions caused by the European multi-level system in particular.

• DFG Programme: Publication Grants