Die Verwirkung im deutschen Verwaltungsrecht
Geltungsgrund und Spannungslagen
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According to the concept of estoppel, a person who disloyally delays the assertion of a right shall forfeit it if the delayed realisation of the right would cause undue hardship to the obligated party. This legal rationale, which is referred to in German legal terminology as »Verwirkungseinwand« (»objection of undue delay«), has been introduced to the German legal system by the Reichsoberhandelsgericht in 1877. Its original purpose was to serve as a judicial device for the protection of legitimate expectations in the context of disputes under commercial law. Thus, its scope of application has initially been limited to private law relations. However, in 1930 the Reichsgericht ruled that the »objection of undue delay« was equally valid in public law. Since then the German administrative courts, social welfare courts and fiscal courts have made extensive use of the objection as a justification for judicial intervention. In view of this, the article investigates the legal fundamentals of the objection and demonstrates that its application to public law is implausible for two reasons. First, the ethical imperatives underlying the »objection of undue delay« have no validity in the relationship between citizen and public administration. Second, the protection of legitimate expectations in the relationship between citizen and public administration is being ensured by specific public-law concepts, which must not be thwarted by a legal doctrine that is essentially of a private law nature.