CHAPTER II The General Part of the Civil Law

Author:E. J. Cohn
Profession:Sir
Pages:30
 
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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 from Ledlie's translation of Sohm's ' Institutions of Roman Law '. The inclination of that school towards conceptionalism and abstractness has left deep traces on the work. Its language is highly technical.

Many of its technical terms convey little meaning to the average German layman. The influence of Roman law is most clearly discernible in the first and second Books. The law of property, the law of domestic relations and the law of succession incorporate a number of Germanic legal ideas. The same applies to the law of landlord and tenant in the second Book. Modem social developments and contemporary social thought have on the whole found little support in the Code. The attitude of the legislator to social problems is patriarchal rather than influenced by social tendencies. The law of workmen and employers has been developed by special legislation outside the code.

Similarly the law of landlord and tenant is now largely governed by complex legislation supplementing and amending the rules of the Civil Code.

96. During the Nazi period far-reaching plans for the gradual replacement of the BGB by a series of laws each dealing with an individual field of law were under consideration. Dr. Schlegelberger, Secretary of State in the Ministry of Justice, published a pamphlet with the significant title ' Goodbye to the BGB '. These plans have only partly materialised. The rules on declaration of death were the subject-matter of re-codification (see par. 109ff.). In the law of property the only innovations were the introduction of the ' Hereditary Farm Law ' and the reform of the law relating to the register of ships plying on inland waterways and mortgages on such ships. Deeper inroads were made in the law of domestic relations. The law of marriage and divorce was recodified by a law of 1938. This law was purged of the most obvious traits of Nazism and has been re-enacted as Control Council Law No. 16. The law of wills has also been the subject-matter of a statute of 1938 replacing the respective provisions of the Civil Code. The chief purpose of this law was to establish uniformity between Germany and Austria.

Only one paragraph, i.e. section 48, had to be abrogated by Military Government. Two emergency decrees of 1943, which gravely affected the law of succession, have meanwhile been suspended by Military Government. An informative survey of the most recent history of the BGB has been given by Isele, in Archiv fiir die Civilist Praxis, vol. 150 (1948) p. 1.

97. Apart from the two instances which have just been mentioned Military Government has not interfered with the structure and the details of German private law.

98. In the interpretation of the BGB some of the peculiarities of its legislative technique have to be kept in mind. The Code does not contain a list of definitions of technical terms. In a number of cases, however, where a technical term is used for the first time an explanation of its meaning is given in brackets following upon the term see e.g. section 123 BGB. The words 'when in doubt' (im Zweifel) signify that the rule in which they occur is a mere rule of interpretation. The words 'if nothing to the contrary has been provided ' (wenn nicht ein anderes bestimmt ist) signify that the rule in which they occur is a rule of ius dispositivum, i.e. that the parties are at

liberty to agree in the individual case that this rule is not to apply. Rules relating to the burden of proof (Beweislast) are given by implication in rules of substantive law; e.g. the words ' es sei denn ' (unless) at the beginning of part of a sentence signify that the party relying on the facts set out in the part of the sentence preceding these words need not disprove the existence of the facts set out after the words ' es sei denn '. Reference from one paragraph to another or to an entire set of paragraphs is frequent, see e.g. sections 315, 537. In such cases the meaning of the individual rule can only be ascertained by studying all the rules referred to in it.

99. In general the Continental judge is much freer to interpret the rules of any law than is his English brother. He can freely consult the official 'motives' of the law. According to the rule 'cessante ratione legis, cessat lex ipsa' he can refuse to apply a law that an English judge would have to apply. There has long been unanimity in Germany that in interpretation the goal is to follow the spirit rather than the letter of the law and that in situations not foreseen by the legislator it is the duty of the judge to deal with the legal problems as long as is equitably possible in the spirit of the law and, if no equitable decision can be arrived at in this way, then in whatever manner is most equitable. Lately, however, it has been found that such freedom of discretion was required not only for cases which were not yet governed by any legal rule, but also for cases which were in fact governed by a rule of law, which, however, in a novel situation led to inequitable results, not foreseen by the legislator. This problem became pressing during and after the first world war...

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