The Exclusion of the Arbitrary Ordinary Termination in German Residential Tenancy Law: A Private Law Perspective

Continuing contractual obligations are characterised by the fact that they do not expire upon fulfilment of the mutual obligations. Without an agreed end to the contractual relationship, an everlasting continuing obligation is at least conceivable. The institution of ordinary termination enables the contracting parties to terminate the continuing obligation unilaterally. In German residential tenancy law, the principle of arbitrary ordinary termination applies only to a limited extent. According to § 573 BGB, landlords can only terminate the tenancy if they can demonstrate a legitimate interest. This article examines various approaches to explaining this peculiarity of residential tenancy law. The exclusion of arbitrary ordinary termination is closely linked to the dogmatic reconstruction of residential tenancy law. While residential tenancy law has historically developed as public law, it is now understood as a matter of private law. Two different reconstructions of ordinary termination are compared and examined with regard to their implications for the understanding of residential tenancy law: § 573 BGB can be understood as the result of conflicting constitutional rights or as a mandatory consequence of a tenancy agreement for residential space understood as the centre of one’s private life.