SECTION IV - The Application Of Foreign Law

VerfasserE. J. Cohn
Amt des AutorenSir
  1. Section 293, ZPO reads as follows:'The law applicable in a foreign country.. requires proof only to the extent to which it is unknown to the Court. In ascertaining these rules of law the Court is not confined to the material put at its disposal by the parties; the Court is entitled to use other sources of information and to take all steps that are required for the purpose of obtaining same.'

    From this rule it has been deduced by the Reichsgericht that it is the duty of the Court to ascertain the existence and effect of any rule of foreign law.

    It follows that there is no burden of proof in respect of foreign law. The Court may use the regular forms of proof in civil procedure, such as evidence by experts, but it is not under a duty to do so and can obtain the material in any other way. In fact it is not usual in German Courts to obtain information on foreign law by taking the evidence of experts. Knowledge of foreign law may be obtained by studying articles on foreign law and comparative law in the German legal periodicals and the large and partly excellent German literature on comparative law, some of which are veritable mines of information on a number of foreign laws. Some of these works are noted in the Appendix to this Part. The German legal periodicals contain frequent references to legal developments in foreign countries. Official information may be given by the Ministry of Justice, the German foreign representatives, foreign Government Departments, Consulates, etc. Many universities maintain libraries and departments on foreign laws. Opinions by such departments are frequently referred to. A number of advocates specialise in one or the other foreign legal system. A number of German decisions deal extensively with questions of foreign law, see e.g. RGZ 151, pp. 313ff., on Austrian Law, RGZ 152, 30ff., on Polish and Canon law. Many books on private international law contain helpful references to foreign municipal laws, especially M. Wolff, Frankenstein and Nussbaum, see the Appendix for further references. Nussbaum includes a brief treatment of the Swiss and Austrian rules of conflict of laws. On the English and American conception of domicile see Raape, I.c., pp. 50ff.

  2. Although-contrary to English law-German law does not consider questions of foreign law as questions of fact, an appeal to the Reichsgericht was not permitted on questions of foreign law, see section 549, ZPO. The same applies now to the appeal to the Supreme...

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