CHAPTER III The Law of Obligations
Manual of German Law › Part I General Introduction and Civil Law (2008)
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CHAPTER III The Law of Obligations
SECTION I - INTRODUCTORY, TERMINOLOGY, ARRANGEMENT
186. The second book of the Civil Code, entitled Recht der Schuldverhiltnisse (law of obligations) contains much, if not most, of the material which an English lawyer is accustomed to find in books on the law of contracts, the law of torts, and in books on special types of legal relations such as sale of goods, landlord and tenant, etc. Contracts (Schuldvertrige) are, however, merely one type of the wider species of Vertrige (agreements) on which the first book of the Code contains many rules. Consequently the rules relating to the formation of agreements are to be found in the first book of the BGB (see above Chapter II, Section XIII) where also the doctrine of nullity and voidability (form, mistake, fraud) is dealt with (see Chapter II, Sections IX-XI). The same applies to the rules relating to ability to conclude legal transactions, to conditions and to the institution of agency (see Chapter II, Sections VIII, XIV and XV). The interpretation of contracts is partly dealt with in the first book (Chapter II, Section XIII) and partly in the second. To obtain a complete picture of the German law relating to contracts it is therefore necessary to remember that the second book must be read in conjunction with the first, which as a 'general' part of the Code is applicable to all legal relations in regard to which ' special' rules are not provided. 187. What the English lawyer calls a contract is in German law styled 'Schuldvertrag '. The relation which arises from a contract or a tort is called Schuldverhiltnis: the title of the second,book itself hints therefore at the fact that this part of the code deals not so much with the contract, its validity and formation as with the relation which arises from a contract or from a tort. The contractual or tort relation itself forms the basis for the relative rights which each party has against the other. EXAMPLES: The purchaser can demand transfer of the property in Redacre which he has bought from the vendor. The vendor can demand payment of the price. Such rights, arising out of Schuldverhaltnisse, are called Forderungen, while the corresponding liability on the part of the debtor is called Schuld. Because the Schuld is the most important aspect of this part of the civil law, this 63844 F 2 branch of German law is often,briefly referred to as Schuldrecht. A debtor is, of course, as a rule, responsible for his debts to the extent of his entire property. There are, however, in German law a number of cases where he is responsible only to the extent of certain parts of his property. These cases are relatively more important than the corresponding cases in English law. They are referred to as cases of limited responsibility (beschriinkte Haftung). EXAMPLES: In a limited liability partnership (Kommanditgesellschaft) the responsibility of some of the partners is limited. The responsibility of the heir may be restricted to what he has acquired by way of succession. The Gesellschaft mit beschrdnkter Haftung on the other hand constitutes-like the English limited liability company-a misnomer, because the company is a separate legal entity and as such responsible to the extent of its entire property, though, of course, the individual member of the company is not responsible. 188. In the preceding paragraphs the term 'tort' has been used in place of the German expression ' unerlaubte Handlung' or as German legal terminology, following the precedent of Roman law, frequently calls it 'delict '. This rendering is inaccurate and will not be used hereafter. German law, following in this respect the example of Roman law, allots to the conception of ' delict' a much less important function than does English law. It understands by ' delict' certain unlawful actions, which as a rule must be either intentional or negligent. The owner of a corporeal thing (see Chapter II, Section VI) can, however, assert his ownership without resorting to the law of delicts. He can make use of other remedies. These are provided for him by the third book of the BGB. These remedies do not require that the defendant has committed a delict. They are additional to those dealt with in the second book and will be described in Chapter IV hereafter. In English law, on the other hand, the owner is confined to asserting his ownership through the law of torts, a fact which partly-though by no means wholly-explains why German law can comprise most of the law of unerlaubte Handlungen within not more than 30 sections of the Code. EXAMPLE: A detains a purse belonging to B. In English law B asserts his right by bringing an action for the tort of detention. In German law on the other hand, B will in the first instance bring an action for the recovery of his property under Section 985 (3rd book of the Civil Code). Only if he wants to demand damages in addition to recovering possession nee...See the full content of this document
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