Provision in Law: Definition, Meaning, and Legal Foundations
Term and General Definition
Die Provision is a civil law concept that is particularly significant in family and inheritance law. According to traditional understanding, ‘Ausstattung’ describes the transfer of assets by parents or other relatives to a child on the occasion of special life events—usually in connection with establishing their own household or marriage. The provision is regulated both in the German Civil Code (BGB) and in other legal contexts.
Legal Sources and Statutory Foundations
German Civil Code (BGB)
The central provision regarding ‘Ausstattung’ can be found in Section 1624 BGB. According to this, ‘Ausstattung’ is the endowment given to someone by their parents or third parties on the occasion of their marriage or to establish their own independent household. The main purpose is to provide the recipient with a material foundation for economic independence or for entering their own family life.
Other Relevant Provisions
Apart from family law, the concept of ‘Ausstattung’ is also relevant in other parts of the legal system, for example in compulsory portion law and special inheritance law, as well as partly in company law. In addition to statutory regulations, the principles of ‘Ausstattung’ are further developed in case law and legal literature.
Provision as a Family Law Concept
Requirements for a Provision
- Transfer of Assets: The subject of a provision can be cash payments, real estate, securities, or other asset positions.
- Circle of Providers: Provision is usually made by parents or grandparents, but other relatives as third parties may also act as providers.
- Occasion: The decisive factor is the specific occasion for the transfer. Traditionally, these are the marriage or establishment of a child’s own household; comparable life events are also included.
- No Consideration: The provision is regularly made free of charge and must not be tied to any particular consideration.
Distinction from Other Transfers
The provision must be distinguished from the gift , which is regulated in Sections 516 ff. BGB. While both are gratuitous transfers, the provision is characterized by the special occasion and regulatory context. This distinction is particularly relevant for the supplementary compulsory portion claim (Section 2325 BGB) and for the equalization duty in inheritance cases (Section 2050 BGB).
Provision in Inheritance Law
Significance in Calculating the Compulsory Portion
According to Section 2325 BGB, provisions as well as gifts are taken into account when determining the supplementary compulsory portion claim. They are subject to the same deadlines and valuation principles as other gratuitous transfers.
Duty of Equalization among Descendants
Within inheritance law, Section 2050 BGB is relevant. Children who have been granted a provision by their parents are obliged to equalize with their siblings unless the decedent otherwise specifies. The provision is fictitiously added to the estate to ensure an equitable distribution among descendants.
Provision in Tax Law
Under German inheritance and gift tax law the provision is typically regarded as a gratuitous transfer. As a rule, the same tax framework conditions apply as for gifts. Tax exemptions and tax rates depend on the degree of kinship and the value of the transfer.
Provision in Corporate Law
In foundations with legal capacity and in the cooperative sector, the term ‘Ausstattung’ partially refers to similarities with inheritance law, for example regarding foundation capital or other deposits provided for endowment purposes. Additionally, provisions can play a role in the establishment of companies.
International Aspects of Provision
Comparable provisions and institutions exist in other legal systems, but they sometimes differ in their application and legal consequences. In private international law, it is decisive which legal system applies to a provision, for example in cross-border family relations.
Legal Consequences and Special Features
Rights of Repayment and Revocation of a Provision
In principle, once a provision has been effected it is binding. There is only a right to reclaim in rare exceptional cases, for instance in cases of gross ingratitude analogous to Sections 528, 530 BGB, or if the assumed life event fails to occur in special exceptional circumstances.
Claim for Equalization and Setoff
Children who have received a provision must, according to Sections 2050 ff. BGB, have it offset against their share of the inheritance unless the decedent has provided otherwise. The equalization claim ensures the heirs are treated equally under inheritance law.
Formal Requirements
Provision is generally not subject to any special formal requirements, unless it concerns real estate (Section 311b BGB) or other transactions requiring form. In such cases, notarization is required.
Literature and Further Information
- German Civil Code (BGB), especially Sections 1624, 2050, 2325
- Palandt, Commentary on the BGB, relevant sections
- BGH, Case Law on Provision in Inheritance and Compulsory Portion Law
Note: This article provides a general, factual overview of the legal term ‘Ausstattung.’ The actual legal assessment always depends on the circumstances of the individual case and the respective current legal situation.
Frequently Asked Questions
Who is legally obliged to provide the minimum provision in rental apartments?
According to German tenancy law, the landlord is required to provide the tenant with the rental apartment in a condition suitable for contractual use and to maintain it in this condition during the rental period (Section 535 BGB). The minimum provisions, from a legal perspective, include basic elements such as a lockable living space, windows for ventilation and lighting, heating (or the possibility to heat), water and electricity connections, a functioning toilet, and a possibility to cook. If these requirements are not met, the tenant can demand rectification of defects or reduce the rent. However, modernization or an upgraded standard is not required as long as the minimum provision is ensured.
What legal requirements exist for sanitary facilities in living spaces?
The legal minimum requirements arise both from the BGB and from state building codes. Each rented dwelling unit must have its own functioning sanitary facilities—generally a WC and a washbasin within the apartment. Communal WCs are not permitted in new buildings and are only exceptionally allowed in old buildings. Bath or shower facilities are generally required, although the precise standards depend on the building regulations of the individual states. If such facilities are missing or defective, this constitutes a defect under Section 536 BGB, entitling the tenant to reduce the rent.
Are there legal requirements regarding kitchen equipment in rental apartments?
Unlike sanitary facilities, the law does not prescribe a fully fitted kitchen or specific kitchen appliances. However, the apartment must at least provide a connection for a stove and a sink so that a tenant can set up a cooking facility themselves. Landlords are only obliged to provide additional kitchen elements if explicitly agreed in the tenancy agreement. If there is no possibility of setting up a cooking facility, this constitutes a material defect.
To what extent is the landlord responsible for providing heating, hot water, and electricity?
The landlord is obliged to provide an apartment suitable for permanent residence. This generally includes a functioning heating system, as apartments must be capable of being heated since the heating season 1973/74 according to established case law. A hot water supply is also expected, although hot water connections are not required in every room (e.g. guest WC). There is also a legal duty to provide an electricity connection, but not an obligation to install modern electrics, as long as the standard meets the technical minimum requirements. In the event of damage (Section 536 BGB), rent deductions may be claimed.
Are there statutory requirements regarding floor coverings, windows, doors, or other fixtures?
The law does not specify particular requirements regarding the type of floor coverings (e.g. laminate, carpet, parquet) or other furnishings. What is essential is that the fixtures are free of defects and in a contractually agreed condition. Floors, windows, and doors must be functional, sealed, and securely fastened. The replacement or modernization of further fixtures is at the landlord’s discretion, unless otherwise agreed contractually.
Is the landlord obliged to provide internet and TV connections?
No, the landlord is not fundamentally obliged to provide an internet or television connection. However, the building must usually allow for the installation of such connections so that the tenant can enter into a contract with a provider at their own expense. If connections are part of the tenancy agreement, the landlord is required to maintain them.
What happens if the legally relevant provision is missing or defective?
If it turns out that the agreed or legally required provision is partially missing or defective, this constitutes a material defect pursuant to Section 536 BGB, entitling the tenant to a rent reduction. However, the tenant must first inform the landlord of the defect and set a deadline for rectification. If the landlord fails to comply, the tenant can claim a rent reduction or, in some cases, terminate the tenancy without notice.
Do modernizations or changes to the provision have legal consequences for the tenancy agreement and rent?
Modernizations that sustainably increase the utility value or lead to lasting savings in energy or water allow the landlord, under Section 559 BGB, to increase the rent by a certain percentage of the costs expended on the apartment. The tenant must be notified in advance of such measures. Structural changes that do not qualify as modernization may require the tenant’s consent and do not necessarily affect the rent. If the provision is worsened as a result of structural measures, a rent reduction claim may arise.
