Das Argument des „mutmaßlichen Stifterwillens“

In practice the "presumed founder's will" forms a kind of "all-purpose weapon" intended to enable the independent foundation under German civil law to flexibly escape from the stipulations in its statutes. This flexibility is fundamentally opposed by the conceptual non-availability of the foundation. The author derives the possible functions of the argument as well as, above all, its legal limitations from the general doctrine of legal transactions and methods: Contrary to the prevailing doctrine, it has a corrective function only where founders or authorities have made simple provisions of the statutes available for disposition and the original purpose of the foundation still exists as a private-autonomous point of reference for correction.