Dispositives Recht und ergänzende Vertragsauslegung (Default Rules and Supplementary Interpretation in the Law of Contract)

Juristische Schulung (JuS), Vol. 53, No. 4, pp. 289-296, 2013

Max Planck Private Law Research Paper No. 13/2

Posted: 29 Jan 2013 Last revised: 19 Dec 2013

See all articles by Hein D. Koetz

Hein D. Koetz

Max Planck Institute for Comparative and International Private Law

Date Written: December 1, 2012

Abstract

Experience shows that all contracts have gaps which the German judge will have to deal with either by applying default rules ("dispositives Recht") made available by statute law for the very purpose of filling such gaps, or by means of supplementary interpretation of the contract ("ergänzende Vertragsauslegung"). The article first addresses default rules, analyzes the economic reasons why contracts are incomplete which is that negotiations can cost more than they serve, and discusses the reasons which should guide the legislature in devising default rules. The article then turns to supplementary interpretation. The judge should provide (or imply) a term which the parties would have accepted as the economically efficient solution of the problem had their attention been drawn to it at the date of the conclusion of the contract. Supplementary interpretation should take precedence over available statutory default rules.

Please note that this is an article published in German.

Keywords: filling gaps in incomplete contracts, default rules of German statute law, supplementary interpretation of contracts, relationship of default rules and supplementary interpretation

Suggested Citation

Koetz, Hein D., Dispositives Recht und ergänzende Vertragsauslegung (Default Rules and Supplementary Interpretation in the Law of Contract) (December 1, 2012). Juristische Schulung (JuS), Vol. 53, No. 4, pp. 289-296, 2013, Max Planck Private Law Research Paper No. 13/2, Available at SSRN: https://ssrn.com/abstract=2200323

Hein D. Koetz (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

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