Legal Ignorance in German Law: The Decline of a Once Stringent Standard

In times of ever-increasing complexity of the legal system, legal errors are inevitable. While the German Criminal Code lays out that a legal error leads to impunity of the perpetrator if unavoidable, legal error in private law has always remained a vague concept. In principle, the Bundesgerichtshof (Federal Court of Justice) excuses a wrongdoer who acted under legal error only in exceptional cases. According to this stringent approach, a party must not only be aware of the existing legal framework, but also anticipate future changes in case law. If the legal situation is unclear, a party must not assume that her own position will ultimately be upheld by the court, but that she will be found liable for a wrong. Under this doctrine, the only circumstances where legal error will be excused are unanticipated and unforeseeable revisions of case law by the supreme court. However, there is a general trend in all areas of private law to soften this stringent approach. In contract law, courts tend to be more lenient on the parties. In the context of contractual liability of the debtor, legal errors are more and more frequently excused under ‘special circumstances’. On the other hand, a creditor who sues for performance is not liable to the debtor for damages incurred in the course of proceedings if he carried out a ‘plausibility check’ regarding his own legal position before filing suit. In tort law, where courts are generally stricter when it comes to legal ignorance, individual judgments point to a more generous stance towards legal error and excuse tortfeasors more easily. In the area of prescription, courts hold that the limitation period only begins to run when the creditor can reasonably be expected to file an action in view of an uncertain legal situation. German case law on legal ignorance in private law resembles a potpourri of different legal standards, all of which aim to govern the exoneration of legal errors. A bright and clear line is not discernible and, therefore, a return to a more stringent standard seems desirable. This does not rule out a balancing of interests in each individual case nor taking into account the idiosyncrasies of the parties involved. We should not strive for a ‘one-size-fits-all solution’ but seek to formulate nuanced liability standards that are able to distinguish, e.g. between consumers and businesses. However, the aim here must always be to develop clear and stringent criteria, thus providing for legal certainty.certainty