German Legal Terms E-H
E
Eigentum — Ownership, the most comprehensive right over a thing under German property law, governed by sections 903–1011 BGB. The owner may deal with the thing at their discretion and exclude others from interference, subject to legal limits. Ownership is protected by the constitutional guarantee in Article 14 GG.
Eingriff — An interference by the state with a fundamental right, triggering the requirement of constitutional justification under the proportionality principle. Any Eingriff must be based on a statutory authorisation and satisfy the four-stage proportionality test (legitimate aim, suitability, necessity, proportionality in the strict sense).
Einstweilige Verfügung — A preliminary injunction or temporary restraining order, available under the Code of Civil Procedure (ZPO) to preserve rights pending final determination. The applicant must show a right to be secured and urgency. The court may grant the order without hearing the other party in urgent cases.
Elternrecht — Parental rights, protected under Article 6(2) GG as both a right and a duty of parents to care for and educate their children. The state may supervise but not supplant parental authority except in cases of parental failure. The state has a duty to support parents in fulfilling their role.
Ermessen — Discretion exercised by administrative authorities, subject to judicial review for errors including discretion defects (Ermessensfehler). Discretion must be exercised in accordance with the purpose of the authorising statute and within legal limits. Review covers both failure to exercise discretion and abuse of discretion.
Ehescheidung — Divorce, governed by the BGB and the Act on Family Proceedings. German law requires separation of one year for consensual divorce and three years for contested divorce. Divorce is based on the principle of marriage breakdown (Zerrüttungsprinzip) rather than fault.
Erbrecht — The law of succession, the fifth book of the BGB (sections 1922–2385), governing wills, intestate succession, compulsory portions for close relatives, and inheritance contracts. The principle of universal succession (Gesamtrechtsnachfolge) means the heir succeeds to the entire estate.
Erfüllung — Performance of an obligation, discharging the debtor’s duty. Under section 362 BGB, an obligation is extinguished when the performance owed is rendered to the creditor. Performance must be made to the proper person, at the proper time, and in the proper manner.
Ersatz — Compensation or damages. Schadensersatz (damages) is governed by sections 249–255 BGB, which establish the principle of natural restitution (Naturalrestitution) — restoration of the position that would have existed but for the damaging event.
F
Fahrlässigkeit — Negligence, the failure to exercise the ordinary care expected in the circumstances. German law distinguishes between simple negligence (einfache Fahrlässigkeit) and gross negligence (grobe Fahrlässigkeit), with different legal consequences including limitation of liability clauses and insurance coverage.
Familienrecht — Family law, the fourth book of the BGB (sections 1297–1921), governing marriage, divorce, parent-child relationships, guardianship, and care proceedings. Family law has been substantially reformed to eliminate gender discrimination and recognise same-sex unions.
Föderalismus — Federalism, a fundamental constitutional principle protected by the eternity clause, dividing legislative and executive powers between the federation and the Länder. The Grundgesetz allocates competences in Articles 70–74. The Länder retain residual legislative power.
Formvorschrift — A formal requirement for the validity of a legal transaction. Section 125 BGB provides that transactions lacking required form are void. Forms include notarisation (for land contracts) and written form (for guarantees). Formal requirements serve evidentiary and protective functions.
Freiheitsstrafe — Custodial sentence. The StGB provides for fixed-term sentences of between one month and fifteen years and, exceptionally, life imprisonment. Sentences are served in prisons administered by the Länder. Conditional release is available after two-thirds of the sentence (or after fifteen years for life sentences).
Frist — A time limit or period prescribed by law or set by a court. Compliance with Fristen is essential in procedural law; missing a deadline may result in loss of rights. Statutory limitation periods for claims are governed by the BGB (sections 194–225), with a regular period of three years.
Forderung — A claim or right to performance, particularly a monetary claim. The law of obligations governs Forderungen, which may be assigned (Abtretung), pledged, or enforced through legal proceedings.
G
Grundgesetz — The Basic Law of the Federal Republic of Germany, the constitution adopted on 23 May 1949. The Grundgesetz establishes fundamental rights, the structure of the state, and the principles of democracy, federalism, the Rechtsstaat, and the social state. Originally provisional, it became the permanent constitution upon reunification in 1990.
Grundrecht — A fundamental right protected by the Grundgesetz, binding all state authority as directly enforceable law under Article 1(3) GG. Grundrechte include human dignity, personal freedom, equality, and freedoms of expression, religion, and assembly. Restrictions must be proportionate and respect the essential content.
Gute Sitten — Good morals, a general clause in section 138 BGB providing that legal transactions contrary to good morals are void. The concept is applied by courts to invalidate contracts that offend prevailing standards of decency and fairness, including usurious contracts, agreements to commit crimes, and contracts exploiting another’s dependence.
Gesetz — A statute or law enacted by the legislature. Gesetze are the primary source of law in the German legal system and are binding on all state authority. Formal Gesetze are enacted by parliament, while Rechtsverordnungen (regulations) are issued by the executive under statutory authorisation.
Gesellschaft mit beschränkter Haftung (GmbH) — A private limited company, the most common form of business entity in Germany. The GmbH is governed by the GmbH Act and provides limited liability to its shareholders. Minimum share capital is 25,000 euros.
Gefährdungshaftung — Strict liability, liability without fault for damage caused by particularly dangerous activities. German law recognises strict liability in specific statutes including road traffic, product liability, environmental damage, and nuclear installations.
Gericht — Court. German courts are organised into five separate systems: ordinary, administrative, labour, social, and finance. The principle of the lawful judge (Article 101 GG) guarantees that cases are assigned to courts according to pre-established rules.
H
Haftung — Liability, the legal responsibility for damage or loss. German law distinguishes between contractual liability (Vertragshaftung), tort liability (Deliktshaftung), and strict liability (Gefährdungshaftung). Liability may be limited by contract, statute, or judicial development of the law.
Hauptverhandlung — The main hearing in criminal proceedings, the trial stage in which evidence is presented and judgment is rendered. The Hauptverhandlung is governed by the principles of orality, immediacy, and publicity. The presiding judge controls the proceedings.
Heimlicher Grundrechtseingriff — A covert interference with fundamental rights, subject to particularly strict constitutional scrutiny. Covert surveillance measures must satisfy heightened justification requirements, including statutory authorisation, proportionality, and proportionality review by independent bodies.
Herausgabeanspruch — A claim for return of property, including the owner’s claim against the possessor under section 985 BGB. The owner may demand return of the thing from any person who possesses it without a right to possess. The claim is subject to defences including bona fide acquisition.
Höchstrichterliche Rechtsprechung — The jurisprudence of the highest federal courts, particularly the Federal Constitutional Court and the Federal Court of Justice, which provides authoritative guidance for lower courts. While German law does not formally recognise stare decisis, the rulings of these courts are consistently followed.
Hinweispflicht — The duty of the court to give guidance to parties, codified in section 139 ZPO. The court must discuss the case with the parties, draw attention to overlooked issues, and ensure that all relevant facts are presented. This duty reflects the judge’s active role in German procedure.