Default rule

Dispensable are those statutory provisions of the civil law, which may be waived by contractual agreement between the parties, such as by changing or complete exclusion. Other terms for abdingbares law are dispositive or disponibles law or ius dispositivum or compliant law. The contrast is mandatory law or jus cogens, that is right that can not be bypassed.

Most provisions of the civil law are dispensable by the Parties. Mandatory law, however, is the exception dar. reason for the fundamental Dispositivität of civil law is constitutionally guaranteed private autonomy.

In historical perspective, the reason for the Dispositivität of civil law is the fact that the legislature of the BGB end of the 19th century assumed that the Parties confront as equal partners. This should be able to regulate their private legal relationships as freely as possible. Since a consensus of the parties is necessary to conclude an agreement, a form of contract is to be achieved in this way. This idea reflects a prevailing liberal state and law understanding. Over the history of the application of the Civil Code, however, the conviction prevailed that the presented equality of the parties did not exist in legal reality. In many areas, particularly in the labor and tenancy, were and are economically unequal partners against. No contractual justice thus could be generated by the unrestricted freedom of contract. Rather, the economically stronger party (eg, landlord, employer) dictated to the economically weaker section ( tenants, workers ) its fund rules. In more recent history ( since about 1970) it was realized a similar economic imbalance between businesses and consumers.

To get the ideal of contractual justice closer again, led the legislature numerous provisions in the Civil Law, which have a mandatory character and thus are not dispensable. These serve to protect the economically weaker section ( workers, tenants, consumers). Provisions of mandatory law, therefore, can be found in particular in labor law, tenancy law and all provisions of consumer protection trend.

Whether a statutory provision is not exceptionally dispensable, must be determined by its interpretation. Your compelling character arises either by express legal provision or from their tendency to protect the economically weaker section.

Also, most parts of property law in the Civil Code are essential, conditionally, for the purpose of clear ownership and ownership.