The German conception of private international law differs from the English conception, in that it does not include the law relating to the limits of the jurisdiction of the Courts. Like the English, but unlike the French, conception it also excludes the rules relating to acquisition and loss of nationality and to the treatment of aliens. On the other hand the German textbooks on private international law include the rules relating to the proof of foreign law and the enforcement of foreign judgments. The same course is adopted in the present summary of the topic.
The eighth volume of Savigny's System of Contemporary Roman Law which deals with the conflict of laws is frequently cited with approval in English Courts. It constitutes perhaps the most important individual contribution by German scholarship to the problems of this field of law. It would, however, be completely erroneous to ascribe to this work any importance whatsoever as a source of information on modern German law. German law has-like other Continental legal systems-been most strongly influenced by the Italian school of followers of Mazzini, which arose several decades after the publication of Savigny's work. This school has succeeded in introducing into German law the principle of nationality as a point of contact on all questions of status and on a number of other questions. It has left many other traces of its strong, and often unfortunate, influence on many individual rules of German law. There is little in Savigny's work which could be taken to represent contemporary German learning on private international law. In any question on the German law of conflict of laws resort must therefore be had to modern works on the topic.
Articles 7 to 31 of the Introductory Law on the BGB contain a number of rules on private international law. They do not, however, constitute anything in any way approximating to a codification. The legislator has selected the rules which he has actually enacted without any regard to their relative importance. Thus the Introductory Law to the Civil Code, (Einfiihrungsgesetz (hereafter abbreviated: EGBGB)) contains rules on conflict of laws relating to guardianship, but not relating to contracts. The result is that in this field of law a situation obtains for which there is no parallel in any other field of German law, in that over wide tracts there are no statutory rules to guide the Courts in their decisions.
It is not surprising that the...
SECTION I - Conception, Character And Sources
|Author:||E. J. Cohn|
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