the burgschaft case makes it clear that civil courts are obliged to protect a constitutional right to party autonomy in conjunction with the principle of the social state and hence to exercise control over the content of a contract. If the content of the contract is exceptionally onerous for the weaker party the courts are obliged to intervene within the framework of the general clauses of the civil law in force. (18)In that way, the Bundesverfassungsgericht followed the new theory of so-called grundrechtlicher Schutzpflicht, which has been defended by Canaris( 19)and which was first introduced by the Court in the Handelsvertreter case (20) The change in the relationship between constitutional rights and the State is quite striking: while constitutional rights were originally conceived as defences against the State, now they are supposed to be protected by the State, i.e. by all its bodies including the civil courts. As a consequence, now in German private law the State has an obligation to protect the constitutional rights of individuals from encroachment by other individuals-an obligation which is no different from the one which is incumbent on the State in public law, in particular in criminal law. (21) Although the Bundesverfassungsgericht did not formally reconsider the theory of the indirect (as it referred to the existing general clauses of civil law), by imposing on the civil courts an obligation to protect constitutional rights, in reality it reached the same results which are comparable to that of the theory of direct effect ( 22) It does not seem to be an exaggeration to say that the obligation of the civil courts to protect constitutional rights in the field of contract law leads in practice to the direct applicability of constitutional rights in contractual relationships. This means that contractual parties are in reality bound by constitutional ights and may have a claim or a defence on the basis of a constitutional right, as a result of which private law rules can easily be replaced by constitutional law rules. Accordingly, if both private parties have a claim or a defence on the basis of a constitutional right, a balance has to be struck between the two constitutional rights, and the role of the general clauses of private law seems to be limited to providing a shelter for this balancing process conjunction with the n ng interests: The right to party autonomy v. the right to party autonomy in It can be seen that in the burgschaft case the weaker party- the daughter of the bankrupt father without sufficient means of subsistence- won a major victory on the basis of her right to party autonomy(Article 2(1)GG) in conjunction with the principle of the social state(Articles 20(1) and 28(1)GG). The question which thereby arises is to what extent the constitutional right to party autonomy can serve the interests of the weaker party to the detriment of the interests of the onger party-the bank. In other words, how absolute is the protection of the weaker party on the basis of the constitutional right to party autonomy? It is interesting to note that the reasoning of the bundesverfassungsgericht in the case at hand expressed in very broad terms, boils down to the following. Normally, contracts must be upheld by as an expression by both parties of their constitutional right to party autonomy. However, in cases where a structural imbalance of bargaining power has led to a contract which is exceptionally onerous for the weaker party, the civil courts are obliged to intervene in order to secure relief for the weaker party. This obligation on the part of the civil courts follows from their
the Bürgschaft case makes it clear that civil courts are obliged to protect a constitutional right to party autonomy in conjunction with the principle of the social state and hence to exercise control over the content of a contract. If the content of the contract is exceptionally onerous for the weaker party the courts are obliged to intervene within the framework of the general clauses of the civil law in force.(18) In that way, the Bundesverfassungsgericht followed the new theory of so-called grundrechtlicher Schutzpflicht, which has been defended by Canaris(19) and which was first introduced by the Court in the Handelsvertreter case.(20) The change in the relationship between constitutional rights and the State is quite striking: while constitutional rights were originally conceived as defences against the State, now they are supposed to be protected by the State, i.e. by all its bodies including the civil courts. As a consequence, now in German private law the State has an obligation to protect the constitutional rights of individuals from encroachment by other individuals - an obligation which is no different from the one which is incumbent on the State in public law, in particular in criminal law.(21) Although the Bundesverfassungsgericht did not formally reconsider the theory of the indirect effect of constitutional rights (as it referred to the existing general clauses of civil law), by imposing on the civil courts an obligation to protect constitutional rights, in reality it reached the same results which are comparable to that of the theory of direct effect.(22) It does not seem to be an exaggeration to say that the obligation of the civil courts to protect constitutional rights in the field of contract law leads in practice to the direct applicability of constitutional rights in contractual relationships. This means that contractual parties are in reality bound by constitutional rights and may have a claim or a defence on the basis of a constitutional right, as a result of which private law rules can easily be replaced by constitutional law rules. Accordingly, if both private parties have a claim or a defence on the basis of a constitutional right, a balance has to be struck between the two constitutional rights, and the role of the general clauses of private law seems to be limited to providing a shelter for this balancing process. 5.2 Balancing competing interests: The right to party autonomy v. the right to party autonomy in conjunction with the principle of the social state? It can be seen that in the Bürgschaft case the weaker party - the daughter of the bankrupt father without sufficient means of subsistence - won a major victory on the basis of her right to party autonomy (Article 2(1) GG) in conjunction with the principle of the social state (Articles 20(1) and 28(1) GG). The question which thereby arises is to what extent the constitutional right to party autonomy can serve the interests of the weaker party to the detriment of the interests of the stronger party - the bank. In other words, how absolute is the protection of the weaker party on the basis of the constitutional right to party autonomy? It is interesting to note that the reasoning of the Bundesverfassungsgericht in the case at hand, expressed in very broad terms, boils down to the following. Normally, contracts must be upheld by the courts as an expression by both parties of their constitutional right to party autonomy. However, in cases where a structural imbalance of bargaining power has led to a contract which is exceptionally onerous for the weaker party, the civil courts are obliged to intervene in order to secure relief for the weaker party. This obligation on the part of the civil courts follows from their
duty to guarantee a constitutionally protected right to party autonomy in conjunction with the principle of the social state (23) It follows from this reasoning that both parties- the stronger and the weaker -enjoy a constitutional right to party autonomy. There is, however, a difference in the interpretation of this ight by the Bundesverfassungsgericht in respect of each of the parties. On the one hand, it appears that the stronger party simply enjoys a constitutionally protected freedom of contract which is derived from the right to party autonomy guaranteed by Article 2(1)GG. (24)On the other hand the same constitutional right to party autonomy pertaining to the weaker party, invoked in conjunction with the principle of the social state, entails protection from an extremely burdensome contract which was entered into when exercising a constitutionally protected freedom of contract. (25) Thus. we can see that what is at stake in this case is the conflict between the two constitutional rights, more explicitly between the two sides of one constitutional right, ie. the right to party autonomy which protects the interests of the weaker party on the one hand, and the one which protects the interests of the stronger party, on the other 5.3 Party autonomy v party autonomy in conjunction with the principle of the social state: Is there a possibility to strike an appropriate balance? Since both parties have constitutionally protected rights, which can be invoked as a claim or as a defence if a dispute arises, an appropriate balance should be struck between them. In the case at hand, this balance had to be found between two sides of the right to party autonomy- party autonomy in the sense of freedom of contract and party autonomy in the sense of the right to be protected from an extremely burdensome contract. That this task is not an easy one can already be seen from the broad formulations of the two constitutional rights involved. Accordingly, the interpretation of the general clauses($ 138(1)and 242(BGB) concerning, respectively, good morals and good faith) on the basis of constitutional rights means, in essence, the interpretation of general clauses of a private law character on the basis of general clauses of a public law nature The question arises whether the Bundesverfassungsgericht in the Burgschaft case managed to provide appropriate criteria for carrying out this kind of balancing between the opposite interests of the two parties, both of which are entitled to protection on the basis of the Constitution. For this urpose, it is necessary to look at the implications which are generally believed to follow from the easoning of the Court (26) In the german literature there seems to be agreement about the three most important consequences of the Burgschaft case, which are, in particular, pointed out by Wiedemann (27)First, according to the Bundesverfassungsgericht the Constitution requires the protection of private parties from themselves. This protection should take place through legislation and judicial decisions (28) Second, it is in accordance with the value system contained in constitutional rights and the principle of the social state that private autonomy in general and contract law in particular should fulfil not only the task of establishing order, but also the task of protection(29)Third, in typical
duty to guarantee a constitutionally protected right to party autonomy in conjunction with the principle of the social state.(23) It follows from this reasoning that both parties - the stronger and the weaker - enjoy a constitutional right to party autonomy. There is, however, a difference in the interpretation of this right by the Bundesverfassungsgericht in respect of each of the parties. On the one hand, it appears that the stronger party simply enjoys a constitutionally protected freedom of contract which is derived from the right to party autonomy guaranteed by Article 2(1) GG.(24) On the other hand, the same constitutional right to party autonomy pertaining to the weaker party, invoked in conjunction with the principle of the social state, entails protection from an extremely burdensome contract which was entered into when exercising a constitutionally protected freedom of contract.(25) Thus, we can see that what is at stake in this case is the conflict between the two constitutional rights, more explicitly between the two sides of one constitutional right, i.e. the right to party autonomy which protects the interests of the weaker party on the one hand, and the one which protects the interests of the stronger party, on the other. 5.3 Party autonomy v. party autonomy in conjunction with the principle of the social state: Is there a possibility to strike an appropriate balance? Since both parties have constitutionally protected rights, which can be invoked as a claim or as a defence if a dispute arises, an appropriate balance should be struck between them. In the case at hand, this balance had to be found between two sides of the right to party autonomy - party autonomy in the sense of freedom of contract and party autonomy in the sense of the right to be protected from an extremely burdensome contract. That this task is not an easy one can already be seen from the broad formulations of the two constitutional rights involved. Accordingly, the interpretation of the general clauses (§ 138(1) and 242 (BGB) concerning, respectively, good morals and good faith) on the basis of constitutional rights means, in essence, the interpretation of general clauses of a private law character on the basis of general clauses of a public law nature. The question arises whether the Bundesverfassungsgericht in the Bürgschaft case managed to provide appropriate criteria for carrying out this kind of balancing between the opposite interests of the two parties, both of which are entitled to protection on the basis of the Constitution. For this purpose, it is necessary to look at the implications which are generally believed to follow from the reasoning of the Court.(26) In the German literature there seems to be agreement about the three most important consequences of the Bürgschaft case, which are, in particular, pointed out by Wiedemann.(27) First, according to the Bundesverfassungsgericht the Constitution requires the protection of private parties from themselves. This protection should take place through legislation and judicial decisions.(28) Second, it is in accordance with the value system contained in constitutional rights and the principle of the social state that private autonomy in general and contract law in particular should fulfil not only the task of establishing order, but also the task of protection.(29) Third, in typical