CHAPTER II The General Part of the Civil Law

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CHAPTER II The General Part of the Civil Law

SECTION I - THE CIVIL LAW AND THE CIVIL CODE

91. The term 'civil law' (biirgerliches Recht) is a German translation of the Roman term ius civile. It designates that part of private law which is contained in the Civil Code (Biirgerliches Gesetzbuch, abbreviated BGB)

and in those laws which have been enacted in order either to carry out the principles laid down in the Civil Code or to amend its provisions. The Civil Code deals with the law of contracts and quasi-contracts, the law of torts, the law of property excluding the law of patents, copyrights and designs) the law of domestic relations and the law of succession. In addition to these topics, each of which forms the subject-matter of one of Books 2-5 of the BGB, the Code deals in its first Book with a number of topics which are of general importance in connection with all the topics dealt with in Books 2-5 and with all other relations of private law. This book is therefore described as the ' general part' (allgemeiner Teil). The reasons for, and the consequences of, this division of the legal material into one ' general ' and four ' special' books will be described in section II below.

92. There are a number of private law topics which are outside the scope of civil law. Commercial agencies, commercial partnerships, maritime law and a number of other topics are dealt with in the Commercial Code (Handelsgesetzbuch, abbreviated HGB) and the many laws enacted for the purpose of supplementing and implementing it. This part of private law is commonly referred to as commercial law (Handelsrecht). Similarly the law relating to patents, copyrights and design is contained in a number of separate codifications. This part of private law is commonly referred to as the law relating to the protection of industrial rights (Recht des gewerblichen Rechtsschutzes).

Finally the relationship between workman and employer has been the subjectmatter of a considerable number of modern statutes. This legislation contains elements of both private and public law. It is commonly referred to as the law of labour (Arbeitsrecht).

93. At the time when the Civil Code came into force each of the individual Lander of the Reich had its own particular civil law. In most of the Lander this was codified. In Prussia a codification enacted under Frederick the Great was in force, the Allgemeine Landrecht of 1794. In the Rhine Province French Law, i.e. the French Civil Code introduced during the time of the Napoleonic wars, was in force, amended by subsequent German legislation.

The relation between the Civil Code and the laws of the Lander is the subject matter of articles 55-163 of the Introductory Law of the Civil Code (Einfiihrungsgesetz zum Biirgerlichen Gesetzbuch, abbreviated EGBGB), which was enacted at the same time with the BGB. In most editions of the BGB the EGBGB is printed after the'text of the BGB. The principle, stated in art. 55, is that the rules of the Lander laws relating to private law cease to be in force with the exception of those rules which are upheld by either the BGB or the EGBGB. A large number of exceptions are made from this principle in articles 56ff. EGBGB. These are sometimes called the ' casualty list' of legal uniformity within the Reich. However, many of the topics with regard to which the EGBGB upheld the existing Lander laws have meanwhile been covered by separate Reich laws with a consequent strengthening of legal uniformity within Germany. The most important topics of private law still governed by the law of the Liinder are the law of mining (Bergrecht, art. 67) and the law relating to water courses (art. 65).

94. On the other hand the Liinder had power to enact new rules of private law on topics not covered by the BGB or by any other Reich law and to enact rules for the carrying-out of the BGB, i.e. laws dealing with questions of detail not mentioned by the BGB or assigned by a special provision of the BGB to the law of the Lander. These carrying-out laws of the Linder are styled Ausfiihrungsgesetze (abbr.: AGBGB). They differ not inconsiderably from each other. In the British Zone Mil. Gov. Ord. No. 57 Schedule A.19 has deprived the Linder of the power not only of enacting new laws on private law

topics, but even of the power of amending the existing ones and of adapting them to present conditions. No such restrictions exist in other zones so that divergencies 'between the different Liinder in the field of private law begin to reappear.

95. The BGB, which came into force on January 1, 1900 and was at the time widely hailed as the most scientific law ever drafted, savours in many respects more of the 19th century than of the 20th. Roman law contributed to much of its contents. The systematic arrangement follows the example of the textbooks of the German pandectist school of the nineteenth century known to many English lawyers f...

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