Definition of terms and fundamentals of the right of order
Das Right of order is a central legal concept that is significant in various areas of law. It describes the legal authority of a person or body to bring about a specific legal state or issue binding instructions through a unilateral declaration—the so-called order. The right of order appears particularly in administrative law, civil law, social law, and inheritance law, and often provides a unilateral right to shape legal relationships towards third parties or subordinate entities.
Right of order in administrative law
Nature and scope
In administrative law, the right of order denotes the legal authority of an authority or official to issue binding regulations for citizens or subordinate administrative units. This is often regulated by law and tied to certain conditions.
Legal basis
Legal bases are found, for example, in the administrative procedure laws of the federal government (§ 35 VwVfG) as well as in the administrative procedure laws of the federal states. The right of order is generally exercised by means of administrative acts, which constitute unilateral, sovereign measures.
Limits of the right of order
The right of order is subject to legal constraints, particularly the principle of legality of administration, the principle of proportionality, and the protection of fundamental rights. Unlawful exercise can result in the order being considered illegal and subject to revocation.
Right of order in civil law
Types and significance
In civil law, the right of order also appears in various legal relationships, for example in the law of obligations or property law. Typical examples include powers of attorney, orders in the context of management without mandate, as well as in insolvency law.
Right of order in representation
Within the framework of the power of representation, a person may authorize another to make legally binding orders in the name of the represented party. The exercise and limitation of such rights of order are regulated in the German Civil Code (BGB).
Right of order in insolvency law
The Insolvency Code (InsO) provides for numerous rights of order of the insolvency administrator, such as the disposal over the insolvency estate (§ 80 InsO).
Right of order in social law
Measures for hazard prevention
Authorities have special rights of order in social law, for example to grant benefits in individual cases or to ward off dangers to public safety and order.
Legal protection against orders
Legal protection against unlawful or disproportionate orders is possible through objection and legal proceedings. Judicial decisions determine the extent and prerequisites of the right of order.
Right of order in inheritance law
Testamentary freedom and right of order
In inheritance law, the right of order arises particularly in connection with testamentary freedom. The testator may issue orders by testamentary disposition regarding the distribution of the estate or its administration, for example through conditions or testamentary execution (§§ 2197 ff. BGB).
Orders by the executor
The executor exercises the rights of order over the administration of the estate in accordance with the last will. The powers may be set to be subject to instructions by the testator.
Distinction from similar legal terms
Right to issue instructions
The right of order must be distinguished from the right to issue instructions. While the right to give instructions generally concerns an employment or service relationship and enables direct influence over the execution and structuring of activities, the right of order usually refers to the realization of certain legal consequences through sovereign or civil law interventions.
Disposition and right to shape legal relationships
The right of order is a type of right to shape legal relationships, enabling its holder to directly effect a change in the legal position by unilateral declaration. The disposition is a specific form of order in property law.
Legal protection and limits
Prerequisites of admissibility
The prerequisite for exercising a right of order is generally a statutory basis of authorization as well as compliance with formal and substantive requirements, such as hearing of affected parties and observance of the rule of law.
Legal remedies against orders
Orders can be challenged by means of objection and legal action. Insofar as an order affects the rights of third parties, they are generally entitled to legal protection.
Significance in practice
The right of order is of great practical importance for administration, legal transactions as well as inheritance and social law. It forms an essential basis for the effective and lawful exercise of powers and for legal protection of those affected.
Summary
The right of order represents an important legal mechanism for shaping legal relationships in various areas of law. Its design, scope, and limits are determined in each individual case by specific legal provisions. The right of order significantly contributes to the enforcement of legal regulations and orders, but at the same time is subject to strict rule-of-law controls and legal protection mechanisms.
Frequently asked questions
When and under what conditions may the right of order be exercised?
The right of order can generally only be exercised by persons or institutions entitled to do so, for example by a legal guardian, authorized representative, or certain authorities where provided by law. The prerequisite for its exercise is usually that the person concerned is no longer legally or factually able to make the relevant declaration of intent or to act independently. In guardianship law, especially under § 1901 BGB, the right of order mainly applies to the guardian concerning personal care or asset management, whereby the welfare and presumed will of the person concerned must always be observed. Judicial approval is additionally required in various individual cases, such as for measures restricting liberty or serious medical interventions (§ 1904 BGB). Furthermore, there must be an effective appointment as guardian or sufficient legal authorization and, if necessary, express transmission or extension of the right of order, for example by court order or power of attorney.
What legal limits exist for the exercise of the right of order?
The right of order is subject to various legal restrictions deriving both from ordinary statutory law and constitutional requirements. The most important limit arises from the fundamental rights of the person concerned, in particular the general right of personality and the right to physical integrity (Art. 1 and 2 GG). Any interference affecting these rights must always be proportionate, necessary, and justified in the interest of the person concerned. Furthermore, for certain particularly sensitive measures—such as deprivation of liberty or compulsory medical treatment—additional statutory requirements and regularly prior approval by the guardianship court are necessary (§§ 1906 ff. BGB). Cross-border exercise of the right of order may result in the order being void or ineffective and can also have criminal or disciplinary consequences.
What duties of cooperation do third parties have in connection with the right of order?
In connection with the exercise of the right of order, third parties such as physicians, caregivers, banks, or authorities may be obligated to cooperate, provided there is effective authorization of the person entitled to order and the relevant action corresponds to the scope of tasks and legal authority. However, third parties themselves may review the legality and authorization of the order (for example, by checking a guardianship certificate or power of attorney). If there are justified doubts as to the effectiveness of the right of order, or if a disproportionate or unlawful order is identified, third parties can and must refuse to act and, if in doubt, notify the competent court. In the social and healthcare sectors, special statutory provisions, such as SGB XI or SGB XII, additionally regulate specific duties to cooperate regarding orders related to care and guardianship.
What judicial review and remedies exist against abusive or incorrect exercise of the right of order?
The right of order is subject to effective judicial review, particularly by guardianship courts. Persons concerned, relatives, or other interested parties may file applications for review of a measure with the character of an order. The law provides for several remedies such as objection, appeal (§ 303 FamFG), or even removal from the office of guardian or authorized representative (§ 1908b BGB). For particularly serious measures, prior court approval is mandatory. Courts review not only the formal legality of the order but also its substantive appropriateness in individual cases to prevent abuse of the right of order and to protect the rights of the person concerned.
What is the significance of the presumed will of the person concerned for the right of order?
The presumed will of the person concerned represents the central standard for the exercise of the right of order under German law. This applies in particular in guardianship law and for medical interventions. The person entitled to order is obliged to collect all available information on the person’s previously expressed or presumed will before exercising their powers and to give this priority in the decision-making process (§ 1901a BGB). For example, patient directives, prior oral or written statements, personal values, and lifestyle habits play a role. The right of order may only be exercised subsidiarily in the objective interests of the person if neither an explicit nor a presumed will can be established.
Who is liable for damages arising in connection with the exercise of the right of order?
In general, the person entitled to order is personally liable for damages arising from the improper or unlawful exercise of the right of order. Liability is governed by the general provisions of the BGB, in particular §§ 1833, 1908i BGB for statutory representatives, and by § 280 BGB for contractual forms of representation. Liability can be excluded if the exercise of the right of order was dutiful, comprehensible, and in accordance with the presumed will of the person concerned or if court approval for the measure was obtained. Additionally, liability for damages to third parties (such as doctors or care facilities) may arise if a measure based on the right of order was unlawful and caused them damage. The liability standard is stricter if gross negligence or intent is proven.
