Open Access

Christoph Becker

• Wirkungslose Bürgschaften und andere persönliche Sicherheiten naher Angehöriger: Bemerkungen zum Verständnis der Privatautonomie in der jüngeren Rechtsprechung
• German Civil Law is based on the principle of contractual freedom. Responsibility for one's own actions is the other side of the medal of freedom. It means that one is bound by one's commitments, even if they turn out to be a heavy burden. Contractual freedom is limited by § 138 (1) BGB (German Civil Code), according to which a transaction is null and void if it is against public morals. Before one reaches this limit, it is possible in individual cases to regard the insistence of one party to a contract on the completion of the transaction as a violation of the principle of good faith, which dominates the contractual relationship according to § 242 BGB. Otherwise, one would have to think before entering into a transaction about whether the consequences thereof are bearable. This applies especially to security transactions which do not provide any direct benefit to oneself, but only to a creditor and his debtor. The Federal Constitutional Court and the Federal High Court of Justice haveGerman Civil Law is based on the principle of contractual freedom. Responsibility for one's own actions is the other side of the medal of freedom. It means that one is bound by one's commitments, even if they turn out to be a heavy burden. Contractual freedom is limited by § 138 (1) BGB (German Civil Code), according to which a transaction is null and void if it is against public morals. Before one reaches this limit, it is possible in individual cases to regard the insistence of one party to a contract on the completion of the transaction as a violation of the principle of good faith, which dominates the contractual relationship according to § 242 BGB. Otherwise, one would have to think before entering into a transaction about whether the consequences thereof are bearable. This applies especially to security transactions which do not provide any direct benefit to oneself, but only to a creditor and his debtor. The Federal Constitutional Court and the Federal High Court of Justice have now defined the limits for demanding payment from a guarantor in such a way that the question arises whether the principle of contractual freedom has been given up to a certain extent.…