## Facts

- Two constitutional complaints arose from civil judgments enforcing family surety agreements in favor of banks.
- In the first case, an unskilled, assetless daughter guaranteed up to 100,000 DM for her father’s commercial credit, including existing and future debts.
- The daughter alleged she did not understand the scope of liability, was told the guarantee was a formality, and signed waivers of protective provisions.
- After the father’s business failed, the bank sought full enforcement against the daughter for an obligation she could not realistically repay.
- In the second case, a wife without independent income, caring for two young children, guaranteed her husband’s bank debt connected to household-related purposes.
- In both cases, ordinary civil courts enforced the sureties largely on freedom-of-contract grounds and rejected invalidity arguments under the Civil Code’s general clauses (including immorality and good faith).
- The complainants argued that the courts’ approach failed to protect constitutionally secured private autonomy where bargaining parity was severely impaired by economic dependence and family pressure.

## Issues

1. Whether fundamental rights, especially protection of private autonomy under the general freedom of action guarantee, must guide civil courts’ application of private-law general clauses in disputes between private parties.
2. Whether enforcing an economically ruinous family surety against a structurally weaker guarantor, without meaningful substantive review under the immorality and good-faith clauses, violates constitutional requirements.
3. What minimum standards civil courts must apply when reviewing family sureties involving extreme financial overburdening and dependency.

## Decision

- The court held that fundamental-rights values indirectly affect private-law adjudication and must inform interpretation and application of open-textured civil-law provisions.
- The court ruled that civil courts have a constitutional duty to protect private autonomy by conducting substantive review of extreme family suretyships using the Civil Code’s general clauses.
- Where contractual parity is severely disturbed and the surety imposes an existence-threatening and foreseeably unmanageable burden on an economically weak family member, civil courts must seriously consider invalidity for immorality.
- The challenged civil judgments were set aside to the extent they failed to perform constitutionally required review, and the matters were remanded for renewed decision applying the articulated standards.

## Legal Principles

- Fundamental rights bind private-law adjudication indirectly by supplying constitutional value judgments that guide application of general clauses in private law.
- Private autonomy is constitutionally protected, but formal consent is insufficient when bargaining conditions are severely imbalanced and decision-making is compromised by structural dependence.
- Civil courts must use general clauses (including immorality and good faith) to control contract content when a surety by a dependent family member creates a grossly disproportionate, existence-threatening liability.
- Central indicia for required scrutiny include: (a) liability far exceeding the surety’s foreseeable ability to pay, (b) structural inequality and personal dependence in close family relationships, and (c) the professional creditor’s awareness of the guarantor’s lack of income and assets.

## Conclusion

The decision required ordinary courts to incorporate constitutional protection of private autonomy into private-law contract review, mandating meaningful substantive scrutiny—and potential invalidation—of extreme family suretyships imposed on economically dependent guarantors under the Civil Code’s general clauses.


Opinion of the German Federal Constitutional Court, 47 N.J.W. 36 (Fed. Const. Ct. 1994)