Equity in German Private Law

Abstract

The German legal system, as in most continental legal systems, is primarily based on statutes. When deciding a case, judges apply the law as written in norms and do not put their own idea of a just and equitable result in place of the solution provided by the legislature. Seen in this light, statutes are “curdled equity”. This leaves little room for deciding a case under the principle of equity, understood as a means to find a resolution of the tension between the abstract-general provisions of the law and the particularities of the case at hand, i.e., the establishment of justice in individual cases. In this article, the relationship between statute and equity will be illustrated for German private law, highlighting the principle (predominance of statutes) and the exemptions (gateways to equity for legislature and courts). Further examples from German insolvency law complete the picture.