Strani pravni život (Jan 2021)
Legal-theoretical characteristics and legal-dogmatic development of German law of general terms and conditions
Abstract
The aim of this paper is to explore the specifics of the Germ an approach in resolving legal issues that are raised regarding general terms and conditions. Applying legal-dogmatic, comparative and legal-historical methods, the paper examines the characteristics and basic directions of development of Germ an legal theory and legislation regarding general terms and conditions. The basics of understanding legal doctrine on the character and legal nature of general terms and conditions are laid out chronologically according to the time of creation and period of dominant influence. The paper highlights the extent to which the legal-theoretic and legal-dogmatic development of German law regarding general terms affected other German-speaking countries, primarily Austria and Switzerland. Legal theoretic development in German law ranged from the strong dominance of normative theory to its strong critics that led to the empowerment of contractual theory. Norm ative legal development is characterized by the principle 'from a special law to the general part of the civil code'. The review of the relevant BGB paragraphs shows that when amending paragraphs of the BGB, the legal concept, which was shaped through German theory and legislation in a coherent whole and in a special law on regulating the general terms and conditions law, was preserved. The provisions of that law were essentially taken into the German Civil Code in 2002 as part of the reform of German contract law. This law not only affected the development of other national legal systems, but also had some impact on the development of consumer law at the European Union level. Namely, some of its provisions were used as the basis for one of the most important directives concerning unfair contractual provisions. The paper also points to the current mechanisms for controlling general terms and conditions through the control of the validity of inclusion (incorporation), the black and grey list of contractual provisions and the general clause.
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