Die Durchsetzungslast im Privatrecht

Helena K. Jahromi develops the concept of the burden of enforcement as a new approach to analysing legal rules. The concept makes it possible to assess the effectiveness of legal norms in relation to the intended level of enforcement. The analysis is based on the assumption that enforcement is not only an opportunity but also a burden for the rights holder, who must take active steps to realise their rights. Whether enforcement through the courts actually occurs depends to a significant extent on the actors involved. The burden of enforcement thus connects doctrinal perspectives with empirical analyses of legal effectiveness. The use of technology can shift this burden by either automatically accessing goods or preventing legal violations without recourse to state authorities. The author examines the legal assessment of such forms of self-help, the contractual limits of enforcement mechanisms, and the criteria for the legislative allocation of the burden of enforcement in the context of new technologies.