October 30, 2011

The relationship of § 309 Nr. 9 BGB and § 307 BGB

Follow-up to Roll–over contracts and the BGB from Per's blog

In the last entry, I referred to the argument on the relationship of § 309 Nr. 9 BGB and § 307 BGB being unclear.

Having done further research on that matter, it became clear that § 307 BGB serves as a catchall element (Auffangtatbestand) to § 309 Nr. 9 BGB. Therefore, § 309 Nr. 9 BGB only provides for the outer boundary of legality of rollover clauses1.

This special relationship is a consequence of the making of § 309 and cannot be derived immediately from the wording, which seems to be quite specific about what is allowed and what is not. In the process of making § 309 BGB, the legislator intended to create an abstract provision which covers the vast majority of cases2. This approach necessarily led to a compromise concerning the acceptable length of time. Consequently the limits are now simply too long for some contracts3. Therefore the purpose of customer protection requires the test according to § 307 BGB.

Interestingly enough, the above issue points to one of the issues of statutory law: it is difficult to create abstract, all-covering provisions while considering the particular case at the same time. A possible remedy for this is to create a catchall provision like § 307 BGB. At that point, the rest is left up to the judge who will decide the particular cases. Therefore, in constellations like above, a “common law element” enters into the german black letter civil law jurisdiction. Taking into account the growing complexity of life, it might be sensible to consider a blended “civicommon law”, when talking about the future of a common european law. There could be statutory rules to set the basis of law, while the particular application heavily relies on judges.

Would this be a means to combine the positive features of both systems?


1 compare Staudinger BGB §§ 305 – 310 (2006), D. Coester-Waltjen, § 309 Nr. 9 Rn. 18, also: Münchener Kommentar BGB 4. Aufl. - Basedow, § 309 Nr. 9 Rn. 11.

2 Staudinger – Coester-Waltjen § 309 Nr. 9 Rn. 2.

3 Staudinger ibid.

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