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from 9 - The duty of obedience
Published online by Cambridge University Press: 05 August 2011
Introduction
When we talk about the duty of obedience in German law, it is quite useful to start with a definition of what the notion of “duty of obedience” means. Following the analysis of Anglo-American law by Rob Atkinson, it can be stated that a duty of obedience exists “where living individuals owe an enforceable duty to follow the dictates of living individuals or – in a strong form – individuals no longer alive”. Applying this definition by way of comparison to the German law of nonprofit organizations, such a duty of obedience can be found in various legal contexts:
– First, a strong duty of obedience – known as “dead-hand control” – exists in the German law of foundations (rechtsfähige Stiftungen), since members of the board are bound by the restrictions that the (living or dead) founder has imposed in the foundation deed and the articles of the foundation. As we shall see, this dead-hand control is an essential element of the law of foundations and is enforced by governmental supervision. In contrast, members or shareholders of associations or corporations (Vereine or Kapitalgesellschaften) are competent to change the purpose or the articles of the organization by (unanimous or majority) vote, even if the organization is a charity.
– Second, some kind of duty of obedience is established if one makes a gift to a charitable organization, because a donor has certain rights to enforce the terms of his gift. However, this is a matter of contract law.
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