Having examined the philosophical foundations of cooperation in the first module, this talk turns to the concrete shape that cooperation takes in German civil law. At its center is the question of what \u201cgenuine\u201d cooperation between persons under private law\u2014that is, between citizens and businesses in everyday legal dealings\u2014means, especially as these interactions increasingly take place online. It concerns contracts, agreements, and the lived interaction of digital business life, where trust and reliability are decisive factors for success.<\/p>\n\n\n\n
The term \u201cgenuine\u201d cooperation already signals that more is at stake than the strict observance of the literal terms of a contract. Precisely in the dynamic and often confusing online environment, where not every contingency can be regulated in advance, \u201cgenuine\u201d cooperation implies partnership-like conduct characterized by mutual consideration and the will to achieve the shared purpose of the contract. Online cooperation\u2014whether in complex software projects, long-term service relationships, or e-commerce\u2014is often marked by high complexity and unpredictability. Changing technical conditions, new market developments, or unforeseen disruptions require flexibility and a willingness to adapt from all involved. Purely formal contract performance that rigidly follows the letter of the agreement, without regard for its spirit or the interests of the other party, can in such contexts quickly lead to suboptimal outcomes, disappointment, and costly conflicts. From a Hegelian perspective, one could argue that \u201cgenuine cooperation\u201d goes beyond the merely abstract right of contract and requires elements of \u201cSittlichkeit\u201d\u2014that is, a lived practice carried by mutual recognition and shared norms\u2014in order to realize the purpose of the contract in the sense of a reasonable and fair interaction.<\/p>\n\n\n\n
The specific challenges of the online space\u2014such as potential anonymity, spatial distance, and the transient nature of some interactions\u2014place particular hurdles in the way of the emergence and maintenance of \u201cgenuine\u201d cooperation. Traditional mechanisms of trust-building, which rest on personal relationships and long-standing reputation, are not always available online, or only in a diminished form. Legal anchor points that demand a minimum degree of fairness, honesty, and consideration in legal dealings, even without personal ties, therefore become all the more important. German private law provides a central instrument for this: the principle of good faith (Treu und Glauben).<\/p>\n\n\n\n
The centerpiece of the cooperation duties under private law is Section 242 of the German Civil Code (B\u00fcrgerliches Gesetzbuch, BGB). The provision reads: \u201cThe obligor is bound to effect performance according to the requirements of good faith, giving consideration to common usage.\u201d Although its wording is primarily directed at the manner in which the obligor renders performance, Section 242 BGB has, through decades of legal development by the courts and legal scholarship, evolved into a principle spanning the entire system of private law. It is far more than a mere behavioral instruction; it can give rise to independent ancillary duties and serves as a corrective for the legal relationship as a whole.<\/p>\n\n\n\n
The term \u201cgood faith\u201d (Treu und Glauben) embodies both an objective and a subjective element. \u201cTreu\u201d stands for fidelity to the contract in the original sense, for honesty and decent business conduct. \u201cGlauben\u201d ties in to an existing or emerging relationship of trust and requires that the trust of the other contracting party, insofar as it is worthy of protection, be taken into account. \u201cCommon usage\u201d (Verkehrssitte), in turn, denotes what is understood as customary, appropriate, and fair within legal dealings\u2014that is, among those involved in a particular line of business. It is what \u201call fair-minded and just-thinking persons\u201d would expect as a matter of common decency. Hegel’s concept of \u201cSittlichkeit,\u201d which encompasses the norms and practices established within a community, offers a philosophical resonance here: \u201ccommon usage\u201d can be understood as a segment of this lived ethical life within the economic context, one that goes beyond the merely formal application of law.<\/p>\n\n\n\n
Section 242 BGB thus functions as a kind of \u201cgateway\u201d through which elements of trust, standards of decency and fairness, and ultimately general considerations of justice enter the often formally structured world of law. It is a general clause that comes into play whenever the formal law, or a rigid interpretation of a contractual clause, would lead to unjust, unreasonable, or ethically indefensible results that offend the general sense of justice. Section 242 BGB is thus not merely a passive behavioral norm demanding certain conduct of the parties, but also an active instrument of shaping and correction. It enables courts to respond flexibly to unforeseen or unfair situations that may not have been contemplated in the original drafting of the contract\u2014a function of inestimable value precisely in the fast-changing world of online cooperation.<\/p>\n\n\n\n
In the online context, \u201ccommon usage\u201d is particularly dynamic and constantly evolving. What was unusual or technically infeasible online yesterday may already be an established standard today\u2014consider response times in customer service, the transparency of online review systems, or the manner of digital communication. Applying Section 242 BGB to online scenarios therefore requires continuous observation of these specific \u201conline usages\u201d and a willingness to take them into account when interpreting good faith. This makes the provision challenging to apply, but also extraordinarily adaptable to new circumstances.<\/p>\n\n\n\n
To give concrete shape to the broad scope of Section 242 BGB, case law and legal scholarship have developed various categories and functions that illustrate how this principle actively shapes and safeguards cooperation under private law.<\/p>\n\n\n\n
Beyond this, Section 242 BGB acts as a gateway for the indirect horizontal effect of fundamental rights<\/strong> in private law. This means that constitutional values such as human dignity (Art. 1 GG), the general freedom of action (Art. 2 GG), or the principle of equality (Art. 3 GG) must be taken into account when interpreting good faith. This has considerable significance for online platforms and how they deal with their users, for instance in connection with account suspensions or content moderation.<\/p>\n\n\n\n The table below summarizes selected cooperation duties and their relevance in the online context:<\/p>\n\n\n\n These various functions of Section 242 BGB form a flexible set of tools for ensuring fairness and cooperation in the diverse and often confusing world of online relationships\u2014from first contact through contract performance to possible disruptions and termination of the contract. Enforcing these duties derived from Section 242 BGB in the online space can, however, be complex due to evidentiary difficulties and the often cross-border nature of many interactions. Digital traces such as emails, chat logs, system records, or transaction histories thus gain enormous importance as evidence. Careful documentation of online communication and interaction is advisable for all parties, so that they can substantiate their position in the event of a dispute.<\/p>\n\n\n\n Although construction law may at first glance seem far removed from the digital world, the cooperation duties developed there offer valuable analogies for complex online projects. The Federal Court of Justice (Bundesgerichtshof, BGH) has repeatedly emphasized that a construction contract is to be understood as a cooperative relationship<\/strong> requiring the parties to work together by mutual agreement and to show mutual consideration. This applies all the more because construction projects are often long-term undertakings, characterized by many uncertainties and dependencies, and carry the potential for unforeseen changes and disruptions\u2014features that also apply to many large online projects, such as the development of complex software, the building of online platforms, or long-term digital service contracts.<\/p>\n\n\n\n From this cooperative character, case law derives specific duties, such as the duty to resolve conflicts jointly and amicably and the obligation to negotiate over disputed points before initiating court proceedings. Both the German Construction Contract Procedures (VOB\/B) and the BGB itself provide for specific cooperation duties. One example in the BGB is Section 642 BGB, which governs the client’s duty to cooperate under the law governing contracts for work (Werkvertragsrecht). If the client fails to fulfill its duties to cooperate (e.g., providing plans, preliminary work), the contractor may, under certain circumstances, demand reasonable compensation or terminate the contract.<\/p>\n\n\n\n These principles established in construction law\u2014the duty of mutual information, of coordinating one’s own performance with that of the other side, of jointly analyzing and remedying disruptions, and of constructively contributing to the shared project goal\u2014are directly transferable to complex online cooperation. Where such explicit mechanisms of cooperation, or implicit ones derived from Section 242 BGB, are lacking, this leads online, much as on a construction site, to misunderstandings, delays, budget overruns, and ultimately to costly legal disputes and project failure. Interestingly, the digitalization of construction law itself\u2014for instance through Building Information Modeling (BIM), which requires intensive digital cooperation and the exchange of structured data\u2014can in turn provide impulses for the legal design of other data-intensive forms of online cooperation. The contractual and legal solutions developed for BIM projects (e.g., rules on data sovereignty, liability for planning errors in digital models) could serve as a model.<\/p>\n\n\n\n A breach of cooperation duties can directly lead to a breach of performance within the meaning of the BGB. If one party fails to meet its cooperation duties arising from the contract or from Section 242 BGB, this can make it impossible, or at least considerably more difficult and delayed, for the other party to render proper performance.<\/p>\n\n\n\n For example, a client’s missing or delayed cooperation in an online project (e.g., failure to deliver content for a website, lack of feedback on drafts) can cause the contractor to fall into default or to be unable to render performance at all. Here the general rules on breach of performance apply, in particular the provisions on the impossibility of performance (Sections 275 et seq. BGB) and on damages for breach of duty (Sections 280 et seq. BGB).<\/p>\n\n\n\n A breach of cooperation duties, which are often to be classified as ancillary duties within the meaning of Section 241(2) BGB, or as non-independent manifestations of the primary performance duty, can itself constitute a relevant breach of duty under Section 280(1) BGB. This can give rise to claims for damages even where the actual primary performance obligation (e.g., completion of software) is formally not yet due or disrupted. A lack of \u201cgenuine cooperation,\u201d such as the unjustified refusal to provide necessary information or the obstruction of coordination processes, can thus have direct legal consequences.<\/p>\n\n\n\n New challenges arise here in the online sphere. Automated systems or algorithms that operate opaquely or erroneously can lead to systemic refusals to cooperate that are difficult to attribute to a single responsible party. Consider an e-commerce platform whose algorithm unjustifiably suspends merchant accounts or suppresses product listings without a comprehensible reason. This raises the question of who is liable for this \u201calgorithmic refusal to cooperate\u201d\u2014the platform operator, the developer of the algorithm, or is this perhaps even a case of \u201cdigital force majeure\u201d? This calls for a careful analysis of responsibilities and possibly a further development of the concept of attributability within the law governing breach of performance in the digital age.<\/p>\n\n\n\n \u201cGenuine cooperation\u201d is, under German private law, more than a pious hope or a non-binding expectation. It is a legal principle anchored in the fundamental principle of good faith under Section 242 BGB and in numerous specific contractual and statutory duties. Especially in the dynamic, often complex, and sometimes impersonal online environment, proactive, fair, transparent collaboration characterized by mutual consideration is crucial to economic success and to avoiding costly legal disputes. Knowledge of, and adherence to, these cooperative legal principles is therefore of essential importance for all actors in the digital space. Hegel’s idea of Sittlichkeit can serve here as a reminder that legal cooperation ultimately rests on a shared ethical foundation and on the recognition of the other as a legal person\u2014something that goes beyond mere contract performance.<\/p>\n","protected":false},"excerpt":{"rendered":" I. Introduction: The Core of Cooperation under Private Law Having examined the philosophical foundations of cooperation in the first module, this talk turns to the concrete shape that cooperation takes in German civil law. At its center is the question of what \u201cgenuine\u201d cooperation between persons under private law\u2014that is, between citizens and businesses in… Continue reading |02| \u201cGenuine\u201d Cooperation Between Persons under Private Law<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_editorskit_title_hidden":false,"_editorskit_reading_time":0,"_editorskit_is_block_options_detached":false,"_editorskit_block_options_position":"{}","footnotes":""},"class_list":["post-2449","page","type-page","status-publish","hentry","entry"],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/pages\/2449","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/comments?post=2449"}],"version-history":[{"count":1,"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/pages\/2449\/revisions"}],"predecessor-version":[{"id":2450,"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/pages\/2449\/revisions\/2450"}],"wp:attachment":[{"href":"https:\/\/bauer.legal\/en\/wp-json\/wp\/v2\/media?parent=2449"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Function of Section 242 BGB<\/th> Specific duty \/ defense<\/th> Example online application<\/th><\/tr> Duty-creating<\/td> General duty of consideration (Section 241(2) BGB)<\/td> A software provider must take into account the inexperience of a prospective customer during contract negotiations and must not overwhelm them with technical jargon.<\/td><\/tr> Duty-creating<\/td> Duty to provide information \/ disclosure<\/td> A cloud service provider must transparently inform customers about its data security measures and the location where data is stored.<\/td><\/tr> Limiting function<\/td> Prohibition of inconsistent conduct (venire contra factum proprium<\/em>)<\/td> An e-commerce platform that has tolerated certain sales practices for years cannot suddenly treat them as a violation without reasonable prior notice.<\/td><\/tr> Limiting function<\/td> Forfeiture (Verwirkung)<\/td> A rights holder who has known for years that their work is being used on a website and does nothing may forfeit the right to demand that the use cease.<\/td><\/tr> Regulating function<\/td> Concretization of the duty to perform<\/td> In an online coaching contract without an explicit rule on the authority to record sessions, Section 242 BGB can be used to arrive at a fair solution.<\/td><\/tr> Control \/ correction function<\/td> Review of standard terms and conditions<\/td> A clause in a social network’s terms of service that allows a one-sided, groundless account suspension without a hearing could violate Section 242 BGB.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n IV. Concrete Cooperation Duties in Contract Law Using the Example of Construction Law (Analogies for Online Projects)<\/h3>\n\n\n\n
V. Breach of Performance and Cooperation Duties<\/h3>\n\n\n\n
VI. Conclusion: Cooperation as a Legal Principle<\/h3>\n\n\n\n