The German Civil Code and the Development of Private Law in Germany

Reinhard Zimmermann*

(2006) Oxford U Comparative L Forum 1 at | How to cite this article

I. The Codification Movement in Europe

The codification of private law from the late eighteenth century onwards is regarded, very widely, as a turning point in the development of private law in Europe.1 Obviously, some of the more naive expectations entertained by intellectuals of the Age of Enlightenment have not been fulfilled: the codifications have neither made the learned lawyer redundant, nor have they led to a lasting consolidation (or ossification) of private law. They have, however, significantly contributed to the national fragmentation of the European legal tradition: for codification constitutes a piece of legislation which is applicable only within the confines of the territory for which the body responsible for legislation is competent to legislate. There had been signs of such fragmentation at the time of the usus modernus pandectarum in the seventeenth and eighteenth centuries when the ‘institutional’ writers had no longer discussed Roman law as such but Roman-Dutch or Roman-Scots law, ius romano-hispanicum or ius romano-saxonicum.2 But it had always been clear that these were merely regional or national variations of a common theme: different manifestations of one and the same legal tradition. With the enactment of the codifications this began to change. The awareness of a fundamental intellectual unity got lost and legal scholarship degenerated, in the much-quoted words of Rudolf von Jhering, to a national discipline the intellectual boundaries of which coincided with the political ones.3
At the same time, the codifications brought to an end the ‘second life’ of Roman law, i.e. the story of its practical application in Europe. Since the days of the ‘reception’ Roman law had provided the basis for the administration of justice in western and central Europe and had become a ius commune, or common law.4 In the process, it had been subject to considerable change; in particular, it had absorbed many elements of canon law, indigenous customary law, mercantile custom, and natural law theory. The usus antiquus of Roman law had thus been transformed into a usus modernus pandectarum5. Yet, a string of authors from François Hotman to Hermann Conring and Christian Thomasius had started to shake the authority of Roman law: of a law that had given rise to intricate doctrinal disputes, that was wedded to outdated and impracticable subtleties, and that had been enacted by the despotic rulers of past ages. Also, since Roman law was applicable only in subsidio, countless more specific territorial or local laws could govern a particular dispute. The great number and complexity of legal sources contributed to a widespread feeling of legal uncertainty and inefficiency as far as the administration of justice was concerned. The codifications were supposed to tidy up this messy situation: they were to provide a systematic regulation of the entire private law, ousting all rival sources including, in particular, the ius commune. Thus, Article 1 of the Dutch Abrogation Act (Afschaffingswet) provided, in a phrase suffused with fear, relief, and elation: ‘The legal validity of Roman law is and remains abrogated.’6

II. The German Civil Code as a Late Fruit of the Codification Movement

The German Civil Code is a comparatively late fruit of the codification movement. The three great natural law codifications in Prussia, France, and Austria had been prepared in the late eighteenth and early nineteenth centuries. They were intended to satisfy the desire for territorial legal unity. The Code civil, in particular, had thus become a potent symbol for the one undivided nation that had emerged from the upheavals following 1789. In the course of the nineteenth century, however, most of the other states of central, southern, and western Europe had codified their private law. Predominantly, the Code civil had been the source of inspiration. It continued to apply in Belgium and became the basis of the Dutch Burgerlijk Wetboek of 1838.7 It provided the point of departure for the Italian Codice civile of 1865 (which could thus be enacted a mere four years after the kingdom of Italy had come into being), for the Portuguese Código civil of 1867, the Spanish Código civil of 1888 – 89 and the Romanian Civil Code of 1865.8 The Serbian Civil Code of 1844, on the other hand, had been influenced mainly by the Austrian Code.
Increasingly, therefore, the legal position prevailing in nineteenth-century Germany was bound to look odd and anachronistic. The Prussian territories (including Westphalia, Bayreuth, and Ansbach) were governed by the Preußisches Allgemeines Landrecht. In the Rhine-Province, Alsace, and Lorraine the Code civil applied.9 The Grand Duchy of Baden had adopted the Badisches Landrecht which was based on a translation of the Code civil.10 The Kingdom of Saxony enacted its own Civil Code in 1865. Some places in Bavaria lived according to Austrian law, while in parts of Schleswig-Holstein Danish law prevailed. Most of the remaining German territories (comprising, in 1890, close to 30 per cent of the population of the Deutsches Reich) still administered justice according to the ius commune. But the ius commune only applied in subsidio. Countless more specific territorial or local laws could therefore govern a particular dispute: from thirteenth-century texts like Eike von Repgow’s famous Sachsenspiegel to Baron von Kreittmayr’s Codex Maximilianeus Bavaricus Civilis of 1756, from the Neumünsterische Kirchspielgebräuche to the Nassau-Katzenelnbogensche Landesordnung.11 Thus, for example, there were all in all more than one hundred different regulations concerning succession upon death. None the less, in the German territories, a fundamental intellectual unity had continued to persist throughout the nineteenth century. That unity was forcefully promoted by Savigny’s Historical School of Law and the pandectist legal scholarship that emerged from it.12 Thus, the contemporary version of Roman law did not apply only in the areas still governed by the ius commune; even in the countries of codified law it provided the underlying legal theory.13 It provided the self-evident point of reference for understanding and assessing the codifications and territorial statutes. Therefore, it remained perfectly possible for a law professor to be called from Königsberg to Strasbourg, from Gießen to Vienna, or from Heidelberg to Leipzig. Nor were law students, as far as choice and change of universities were concerned, confined to the institu-tions of the state in which they later wanted to practise. Neither the Prussian Code, nor the Code civil or the Saxonian Civil Code, became the focal point for the legal training offered in the universities of the respective states.14 Just as the codified laws had at first been neglected, and subsequently been pandectified, by contemporary legal scholarship, they constituted hardly more than an appendix to the courses on Roman private law in the curricula of nineteenth-century law faculties.15

III. The Programme of ‘Historical Legal Science’

Our perception of nineteenth-century pandectist ‘legal science’ has been coloured, for a long time, by the exaggerations of those who attempted to break away from it and from the ‘conceptual jurisprudence’ established on that basis. Thus, a scholar like Georg Friedrich Puchta is only slowly beginning to emerge from the shadow cast by the pre-eminence of Savigny.16 Jhering’s work cannot be apportioned as easily, as once thought, into two different periods, separated by a ‘conversion’ from conceptual to functional jurisprudence. And even Bernhard Windscheid, the embodiment of pandectist scholarship in the second half of the nineteenth century (‘Legal scholarship means pandectism, and pandectism means Windscheid’) not only regarded himself as the servant, but also as the master of the concepts.17 True law, for Windscheid, was ‘strict but, at the same time, lenient; fixed and yet free; firm but also flexible’ (that corresponded to the ideal of classical Roman law), and the true Jurist, in his view, was able, like the Roman jurists, ‘to serve his concepts and freely to rise above them’.18 The programme of ‘historical legal science’, as it had been developed by Savigny at the beginning of the century, had also been characterized by a certain tension. For while the emphasis of an organic connection between contemporary law ‘and the entire past’19 led to a discovery of the modern discipline of legal history (previously there had only been ‘legal antiquities’),20 Savigny ultimately aimed at legal (rather than historical) scholarship, i.e. the establishment of a legal doctrine which, though developed ‘historically’, was in conformity with contemporary requirements.21 Thus, in the preface to his System des heutigen Römischen Rechts (System of Contemporary Roman Law) Savigny emphasized the need ‘firstly, to trace and establish, within the entire body of our law, what is… of Roman origin, in order not to be unconsciously dominated by it; but then our approach aims at eliminating, among these Roman elements of our intellectual formation, whatever has in fact withered away and merely continues to lead a troublesome shadow life as a result of our misunderstanding’.22 The main task of a scholar in private law, he writes at another place, ‘is the intellectual penetration, adaptation and rejuvenation’ of the legal material as it has come down to us.23 Savigny’s vision of an ‘organically progressive’ legal scholarship,24 based on a uniform body of sources, guided by the same methodological convictions, and common to the whole nation – for Windscheid this was ‘a revelation’25 – led to a heyday of legal scholarship in Germany. It constituted the intellectual foundation for the emergence of a national community of scholars, of German legal unification on a scholarly level. At the same time, pandectism secured the leading place for Germany in the world of nineteenth-century legal scholarship; it was much admired by lawyers all over Europe and exercised significant influence on the legal development in countries such as France, Italy, and Austria.26
An obvious paradox inherent in Savigny’s programme that has repeatedly been noted consisted in the emphasis on Roman law as the basis for a contemporary theory of private law. It ill matched the idea of law as being the product of the spirit of the people (Volksgeist). The phenomenon of the ‘reception’ could only be explained in a very tortuous way on that basis.27 A second problem arose from Savigny’s partiality for the pure and undiluted Roman law, corresponding to the educational principles of contemporary humanism and the aesthetic ideas of classicism.28 It entailed a somewhat disdainful attitude towards the immediately preceding period of the usus modernus pandectarum and a negative, and essentially unjust, evaluation of the work of the medieval Commentators whose mos italicus had paved the way for the usus modernus. This attitude was not easily reconcilable with a programme that was fundamentally based upon the notion of ‘organic growth’ and insisted on ‘the even and dispassionate recognition of the value and individuality of every age’.29

IV. ‘Historical Legal Science’ and Codification

Moreover, there was, within the Historical School, an ambivalence towards the question of codification that was never quite resolved. The ‘founding manifesto’30 of the Historical School was Savigny’s reply to A.F.J. Thibaut’s call to end the intolerable and inconvenient diversity of private laws prevailing in Germany by adopting a General German Civil Code, modelled on the French Code civil.31 In his famous essay entitled Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Of the Vocation of our Time for Legislation and Legal Science) Savigny not only rejected the idea of a codification to be drafted and enacted hic et nunc, but criticized the very notion of a codification as inorganic, unscientific, arbitrary and hostile to tradition. At best, it was unnecessary; at worst it would distort and stifle ‘organic’ legal development.32
None the less it was widely accepted, from about the middle of the nineteenth century that a codification of private law in Germany was about to come and was to end the direct application of Roman law. Theodor Mommsen in 1848 voiced the German nation’s desire for the creation of a uniform and national law,33 and Rudolf von Jhering predicted in 1852 that his own generation of lawyers would see the demise of Roman law in its present form.34 The editorial of the first volume of the Zeitschrift für Rechtsgeschichte (Journal of Legal History 1861), while professing to continue the plan and the aims of Savigny’s Zeitschrift für geschichtliche Rechtswissenschaft (Journal of Historical Legal Science) gave expression to the prevailing conviction that the historical development of the law could now sufficiently clearly be assessed ‘for the results of the historical inquiry to be employed in the legislative process’. And even one of Savigny’s most faithful disciples, who had sat at his feet in the University of Berlin and who had never ceased to see in him his own scholarly ideal, Bernhard Windscheid,35 was among the most influential proponents of a German codification. Among the German lawyers, he wrote in 1878, ‘there are probably relatively few who have not, with all the strength of soul available to them, yearned for the great work of a German code of private law’,36 Thus, it is small wonder that the codification’s entry into force on the first day of the new century was greeted with strong feelings of national pride. ‘The new century brings to fruition the greatest feat achieved in German legal life’, as it was put in one of the two leading law Journals for practitioners,37 while the other one, the Deutsche Juristenzeitung (German Lawyers’ Journal) opened its January issue for the year 1900 with an ornamental page carrying the heading ‘One People. One Empire. One Law’. For the first time, the notion of legal unity had become reality on German soil and for the first time, therefore, the energies of scholars and practitioners alike could focus on the interpretation of one and the same authoritative text.

V. Legal Unity by Way of Legislation

The way towards legal unity by means of a code of private law had been long and arduous. In the first half of the nineteenth century, the various states joined in the Deutscher Bund (German Federation) had already started to accommodate the needs of an expanding economy that was operating increasingly on a supraregional level. The advent of machinery and urbanization facilitated the production processes and the rising bourgeoisie favoured open markets promoting the free interplay of economic forces. Legal unification therefore was required, first and foremost, in the trade-related fields of law. A first significant step in this direction was the establishment of a German Customs Union in 1833. In 1848 the law of negotiable instruments was unified by means of the Allgemeine Deutsche Wechselordnung,38 and between 1861 and 1866 nearly all the states of the Deutscher Bund adopted the draft of a General German Commercial Code (Allgemeines Deutsches Handelsgesetzbuch) that had been completed in 1861.39 A draft law of obligations (Dresdener Entwurf) was published in 1865. Although it was never adopted, it significantly influenced the German Civil Code.
After the creation of the Deutsches Reich a streamlined procedural and organizational framework for the uniform and efficient administration of justice was established: the four Reichsjustizgesetze40 concerned the unification of the court system (Gerichtsverfassungsgesetz), the law of bankruptcy (Konkursordnung), civil procedure (Zivilprozeßordnung), and criminal procedure (Strafprozeßordnung). They all came into force in October 1879. While they have been amended on various occasions, three of these acts remain upon the statute book today; the Konkursordnung was replaced by a new insolvency code (Insolvenzordnung) in 1999. The first of October 1879 also saw the opening of a supreme appeal court for the entire Reich in all civil and criminal matters: the Reichsgericht.41 Its seat was Leipzig, a city with a distinguished legal tradition which had the advantage of not being identical with, but still sufficiently close to, the political capital of the Reich (Berlin). Its first president was Eduard von Simson, a Prussian lawyer of Jewish descent who had been baptized in his early youth. He had presided over the German National Assembly of 1848 that had met in the Frankfurt Paulskirche and had also been president of the Imperial Parliament.42
The scene was thus set for what was to be the crowning symbol of German legal unity: a code of private law. Its gestation period was close to thirty years. The starting shot was fired by the lex Miquel Lasker of 1873, by means of which the power to legislate concerning the entire field of private law was conferred on the Imperial Parliament. The details of the way in which the BGB has been prepared have often been recounted:43 appointment of a preliminary commission and, subsequently, of the First Commission, preparation of preliminary drafts by the reporters appointed for the five books of the projected code, publication of the First Draft with the attendant motivations (entitled Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich), vigorous and very controversial public debate, deliberations of an internal commission of the Imperial Department of Justice, appointment of the Second Commission, publication of the Second Draft, again with the attendant motivations (this time entitled Protokolle der Kommission für die Zweite Lesung des Entwurfs des Bürgerlichen Gesetzbuches), revision of the Second Draft by the Federal Council (Bundesrat), the debates in the Imperial Parliament (both in committee and in plenary sessions), the taking of the final vote (with the Social Democrats voting against the code because it did not deal with labour relations), promulgation in the Government Gazette of 1896, and entry into force a little less than three and a half years later, on 1 January 1900. In 1897 the librarian of the Reichsgericht, Georg Maas, published a little-known bibliography of the official documents relating to the Civil Code;44 two years later a very useful collection of many important (though not, as was claimed in the title of the work, all) documents was edited by Benno Mugdan.45 In the meantime, the genesis of each individual rule contained in the BGB has been traced and made available in an easily-accessible manner by Horst Heinrich Jakobs and Werner Schubert.46 In addition, Werner Schubert has organized a reprint of the preliminary drafts of the reporters appointed for the First Commission and their motivations.47 They contain a wealth of comparative material and are an outstanding source for the state of contemporary doctrinal discussion.
The BGB was supposed to be, in Bernhard Windscheid’s words, ‘a cathedral of national splendour’,48 and Windscheid himself became one of its principal architects. Neither the design nor the details of its construction, however, could be taken to have been lifted from ‘among the treasures deeply hidden in the people’s soul’.49 The general public in Germany has never developed any enthusiasm for the BGB, in spite (or, possibly because) of all of its technical qualities. And even among lawyers, the code was not universally greeted with feelings of elation or joy. The publication of the First Draft had initiated a persistent stream of criticism. ‘A tornado broke loose. It rained, it poured books and pamphlets… The project was criticized from every point of view… One might have thought that the whole scheme would perish’: thus Maitland, from the perspective of a foreign observer.50 This criticism was taken into account only to a limited extent. Eventually, German lawyers began to resign themselves to the idea that perhaps too much had been expected of the Civil Code.

VI. The BGB as a ‘Prison Cell’?

At the same time, there had also been widespread feelings of apprehension in the years before 1900 as to how the codification would influence the administration of justice.51 Many lawyers realized that, in view of the special nature of the Roman legal sources, they had enjoyed a great degree of freedom. The richness and complexity of those sources had allowed wide scope for doctrinal development and innovation, and the pandectist scholars had thereby become the high priests of legal scholarship.52 The new code, it was feared, would reduce the judge to a mere ‘subsumption machine’ (Subsumtionsautomat),53 and would constitute a prison cell for legal scholarship.54 There was great concern about an impending ‘cult of literalism’.55 These anxieties prompted some authors to attribute to the BGB merely the status of a ‘restatement’;56 they stimulated renewed attempts to search for criteria of justice beyond the positive law;57 and they contributed substantially to the rise of the ‘free-law movement’ (Freirechtsschule).58 Looking at the way in which private law developed in the course of the twentieth century it appears that the BGB did in fact prove to be a kind of prison cell in one respect. For, while the draftsmen of the code had still based their proposals on remarkably comprehensive comparative legal research,59 private law legislation in the new century in the words of Ernst Rabel, became enamoured with the example of the Great Wall of China.60 A similar observation could be made as far as legal doctrine and the study of law are concerned. By the time the BGB entered into force, an avalanche of legal literature had started to sweep across the German legal landscape.61 Textbooks62 and commentaries63 on the BGB had been appearing since as early as 1897. In 1899 a bibliography was published that listed approximately 4,000 titles of over 324 pages.64 This literature, however, was almost exclusively exegetical in character, focused on the wording of the Statute.65 Many authors at first did hardly more than paraphrase the statutory provisions. They waited to see how these provisions would be applied in practice66 and then began to integrate the rapidly emerging case law into the new editions of their works.
Thus, very soon, the letter of the law was filled with life. At first glimpse, at least, it appeared to be a new and youthful life. Since the codification, according to contemporary opinion, contained a comprehensive and closed system of legal rules,67 it constituted an autonomous interpretational space. Thus, on the one hand, ‘the recollection of pandectist scholarship, one of the supreme achievements of the German legal mind’,68 faded remarkably quickly from both the doctrine and the practice of German law; Savigny, Dernburg, Jhering, Windscheid, and many other of the leading authors of the nineteenth century were hardly cited any longer, not to mention the earlier literature of the ius commune or the Roman legal sources themselves. The ‘historical’ interpretation was largely reduced to a perusal of the materials and motivations produced by the draftsmen of the code.69 Of considerable significance, in that respect, had been the decision of the German law teachers in 1896, at a Conference in Eisenach, to assign to the BGB the central position in the law curriculum; this was quite contrary to the way in which the codifications prevailing in parts of nineteenth-century Germany had been treated.70 On the other hand, everything which lay outside the territorial scope of application of the national codification also vanished from the intellectual horizon of legal academics and practitioners. German law was to be understood and developed from within itself: Italian and French legal literature, let alone English case law, could contribute nothing to it. The codification thus promoted not only a vertical, but also a horizontal, isolation of legal scholarship. ‘[I] simply do not believe that contemporary law has really grown from the old law, but I regard it as something new, created by the need of the present day and the sovereign will of the modern legislature’, wrote Konrad Cosack, the author of a modern textbook,71 and he therefore refused to develop the law historically. At the same time, the organic point of departure for the incorporation of comparative law was lost. The legal horizon was limited by the rules and principles contained in the BGB. Within this framework, judges and legal writers strove to determine ‘the concept’ of impossibility72 to distinguish the different types of damage that can arise as a result of the delivery of non-conforming objects,73 or to penetrate the labyrinth of the ‘owner-possessor-relationship’.74 According to prevailing, contemporary ideology the codification represented the turning point of German legal history.75

VII. The Reaction of the Courts

And the courts? Even in the course of the nineteenth-century legal practice had not conformed to the ideas usually associated with the terms ‘conceptual jurisprudence’ and ‘scholarly positivism’. Self-confident courts like the Supreme Appeal Courts of Kassel, Jena, or Munich, the Supreme Appeal Court of the four free cities in Lübeck, the Prussian Supreme Court, or later the Imperial Supreme Court in Commercial Matters and, from 1879, the Imperial Supreme Court, were able without any difficulty to procure for themselves ‘the freedom of movement which is so indispensable for a judge’ (and which was indeed conceded to them by clear-sighted authors like Windscheid).76 An example can perhaps illustrate this assertion. At the beginning of the nineteenth century Gustav Hugo had stated very pointedly that Aquilian liability could, essentially, be reduced to the principle: whoever unlawfully injures another is bound to pay compensation. This assertion, he added, gave offence to ‘the exact scholars’ and was, therefore, not to be found in any of the textbooks, even although it correctly reflected the practice of nearly all courts in Germany.77 But it was quite in tune with the tradition of the ius commune78 and was to lead, in the course of the following decades, to decisions where compensation was granted for pure economic loss.79 Essentially, therefore, the lex Aquilia was applied in a very similar way as the famous general provision of delictual liability in French law (Article 1382 Code civil) was interpreted by the courts.80 There were many other developments which an ‘exact scholar’ must have observed with alarm. Thus, as far as liability among neighbours was concerned, pandectist legal literature tended to insist on fault.81 At the same time, however, the courts displayed a remarkable willingness to abandon the axiomatic fixation on the culpa requirement as a Foundation for extracontractual liability. When, from the middle of the nineteenth century onwards, industrialization led to a significant increase in neighbour disputes, they realized that an owner of property has to be granted protection, at least in some situations, even beyond the general principles of Aquilian liability. The actio negatoria was among the remedies liberally extended in this context.82 The possibility of sanctioning wrongs by means of private law had vanished from legal practice long before it had vanished from the textbooks.83 And that an owner has to make sure that his property does not constitute a danger to the public was recognized long before the concept of Verkehrssicherungspflicht had found its way into legal literature.84 Many more examples could presumably be found by closely analysing nineteenth-century court practice. The Imperial Supreme Court in Commercial Matters displayed a great deal of creativity in the nine years of its existence, and in the reasons for its decisions it relied surprisingly often on comparative observations.85 The Reichsgericht interpreted the codes and statutes which it had to apply not in a literalist manner but in the spirit of the historical school, i.e. with reference to the general thinking patterns of pandectist legal scholarship.86
This comparatively flexible approach towards the applicable sources of law did not significantly change after the enactment of the BGB. For, contrary to a widely held opinion, the first decades of the twentieth century were not marked by conceptual jurisprudence, statutory positivism, and the fine art of the ‘legal game of chess’.87 Thus, for example, the Reichsgericht continued to apply the exceptio doli in the tradition of the ius commune;88 soon after 1900, it began, from a number of different starting points, to turn the decision of the draftsmen of the BGB not to recognize the doctrines of culpa in contrahendo89 and clausula rebus sic stantibus90 on its head; it granted claims arising from positive malperformance (positive Forderungsverletzung) of contracts of sale based on § 276 I 1 BGB in exactly the same way as it had previously done on the basis of the actio empti of the ius commune;91 it recognized a right to terminate the contract even in these cases of contractual liability;92 the judges of the Imperial period had already laid the foundations for the recognition of a contract with protective effect vis-à-vis third parties and the doctrine of transferred loss (Drittschadensliquidation);93 they set in motion the process of a transformation of the law of delict,94 which was later analysed in a famous article by Ernst von Caemmerer;95 they established the essential contours of the law of agency as it is practised today,96 and they determined the boundary between liability for latent defects and the law of mistake97 which was to hold for the rest of the century. Here, too, many other examples could be given. Where the Reichsgericht developed the law, there are usually either overt or covert lines of continuity linking the new law to the old: either because the judges simply perpetuated their earlier case law, or because they extended a line of development which had its origin in the nineteenth century. Except in the ideology of most law teachers, the BGB was certainly not a watershed in German legal development; indeed, rather it bore certain characteristics of a restatement98 while, at the same time, settling a number of deeply-rooted doctrinal disputes.99 Or, as Bernhard Windscheid wrote in an article in which he attempted, for himself, to resolve the tension between the programme of the Historical School and the impending codification of German private law, or between legal science and legislation: ‘As historical jurists we know that the code will be no more than a moment in the development, more tangible, certainly, than the ripple in a stream but, none the less, merely a ripple in the stream’.100 The great achievement of the Reichsgericht lay in the fact that, from the outset, it cautiously developed the law and adapted it to new and changing circumstances while generally avoiding any break in continuity. Among the tools used by the judges were the undisguised appeal to general legal intuition101 or common sense,102 the reading of tacit conditions into the contract (a device which has been popular at all times and in many countries),103 and the construction of fictitious contracts.104 And in order to satisfy, at least formally, the demands of statutory positivism, even the legislative history was occasionally subjected to a somewhat skewed perspective determined, above all, by the desired result.105

VIII. Unity of the System of Private Law?

‘But nothing is more certain than that the old society and economic system has irretrievably come to an end’ (Thomas Mann in his diary, 15 April 1919). That collapse resulted from the First World War and the upheavals caused by it. At the same time, our perception of the world changed dramatically. ‘The modern world began on 29 May 1919’, writes Paul Johnson,106 ‘when photographs of a solar eclipse, taken on the Island of Principe off West Africa and at Sobral in Brazil, confirmed the truth of a new theory of the universe’. Obviously, the nineteenth century only really ended at around 1920. Thus, unlike the Code civil, the BGB did not herald the beginning of the new epoch. In many respects, it still reflected the values of a world that was destined to disappear.107
It was a world with a patriarchal family structure, with associations and foundations still firmly under the tutelage of state authorities,108 and with a comparatively formal concept of freedom of contract;109 a world in which a regulation on bee swarms was regarded as more important than one on standard terms of business. The typical citizen for the BGB was not the factory worker but rather the moneyed entrepreneur, the landed proprietor, or the public servant.110 In a number of respects, therefore, the BGB was soon to be regarded as outdated. About 160 statutory amendments and decisions of the Federal Constitutional Court have affected both the text and substance of the code, more than half of them, however, dating from the last quarter of the twentieth century. Family law, in particular, has been subject to fundamental changes; more than thirty important amendments have left hardly any part of it unchanged.111 Comparatively few changes have been made to text of the other four books. The provisions on lease and employment contracts have been considerably modified and supplemented, but the development of the law of domestic leases112 has largely, and that of labour relations113 has completely, taken place outside the framework of the BGB. Other major amendments concern the regulation of contracts relating to package holidays in §§ 651 a ff., the law of land tenure (§§ 585 ff. BGB) and contracts concerning bank transfers, bank payments, and giro accounts (§§ 676 a ff.).114
Outside the BGB, however, a secondary system of private law by way of special statutes’115 has grown up, by means of which the social model underlying the BGB has been adapted to modern conditions. Apart from competition law and labour law, the law of consumer protection deserves particular mention in this context. Among its core components are the statutes on standard terms of business (1976), doorstep sales and similar transactions (1986), and on consumer credits (1990), but also other statutes like the ones dealing with liability for defective products (1989), time-share agreements (1996) and distance sales (2000). It is often overlooked116 that this tradition of excluding from the general private law codification subjects which are considered to be of a special nature dates back to the Historical School and that therefore neither the statute concerning instalment sales (1894) nor the one imposing strict liability for personal injuries sustained in the operation of a railway (1871) were included in the code.117 It has, in fact, remained controversial until today whether, or to what extent, such subjects have attained the kind of structural and conceptual stability required for incorporation into a general code of private law.118

IX. The Resilience of the BGB

With the Modernization of the Law of Obligations Act, most of the special statutes in the field of consumer contract law have now found a place in the BGB. In addition, there have been reforms affecting the law of damages,119 contract of lease,120 form requirements,121 package holidays,122 and foundations.123 The introduction of same sex partnerships by an act of 16 February 2001124 has led to more than thirty provisions throughout the BGB being amended. All these changes, however, have happened in the course of the past four years. Up to that time, i.e. for the first one hundred years of its existence, the text of the BGB (apart from the provisions on family law) had been remarkably resistant to change. This resilience throughout all the upheavals of the twentieth century has frequently been commented upon. It is less remarkable for property law, the law of succession, and even for delict or unjustified enrichment, than it is for an inherently dynamic subject such as contract law. The ‘evacuation of important developments (labour law, social lease law, consumer law) provides only part of the explanation. Another reason for the BGB’s resilience lies in the character of the code itself. In form and substance it was moulded by nineteenth-century pandectist scholarship. Its draftsmen had, very largely, aimed at setting out, containing, and consolidating ‘the legal achievements of centuries’.125 The BGB was regarded as part of a tradition significantly shaped by legal scholarship. The phenomenon of scholarly ‘development’ of the law was quite familiar to the draftsmen of the code. Horst Heinrich Jakobs has, therefore, pointedly referred to the BGB as a codification ‘which does not contain the source of law in itself but has its source in the legal scholarship from which it was created’.126 The BGB was designed to provide a framework for an ‘organically progressive legal science’. The idea of enacting a prohibition of commenting upon the BGB (as existed with regard to the Prussian Code of 1794)127 was quite alien to the draftsmen of the BGB: as alien as the equally odd idea that it might be possible to lay down a specific rule for every imaginable situation. Time and again, the travaux preparatoires contain express statements to the effect that the solution to a specific problem has to be left to legal scholarship.
Moreover, in spite of having been influenced so strongly by pandectist legal doctrine, the BGB is not doctrinaire in spirit and outlook.128 Its draftsmen did not feel called upon to provide authoritative definitions for fundamental concepts such as contract, declaration of will, damages, causation, or unlawfulness and thus, in a way, to remove these matters from scholarly discussion. Nor did they determine questions of legal construction (what type of legal act is the performance of an obligation?). A number of basic evaluations and doctrinal points of departure were also not specifically spelt out in the code in view of the fact that they could be taken for granted. Thus, for example, there is no explicit reference to freedom of contract. § 119 BGB envisages three different types of mistake which allow a contract to be rescinded; but the intellectual basis for this rule, i.e. that an error in motive is irrelevant in principle, is not mentioned in the code. The BGB sometimes provides hardly more than the conceptual signposts for the development of legal doctrine. The rules contained in it usually attain a considerable level of abstraction, both as far as form and substance are concerned. Contrary to the Prussian Code (‘Common chicken, geese, ducks, doves and turkeys are to be counted among the chattels appurtenant to a landed estate’)129 the BGB predominantly does not attempt to provide a careful and detailed regulation of individual situations to be encountered in daily life, but instead makes available a set of rules and concepts which are applicable to a large variety of problems – among them many that could not be envisaged by those who drafted the code. It is hardly surprising that the BGB has come to be regarded as outdated wherever this technique has not been followed and where the code, therefore, confronts its readers with the world of day labourers and coach drivers,130 or with the merger of migrating bee swarms.131 In addition, of course, there are open-ended provisions like § 138 I BGB (invalidity of contracts contra bonos mores) or § 242 BGB (obligations must be performed in accordance with the precepts of good faith)132 by means of which the BGB attempts to achieve a balance between doctrinal stability and flexibility.

X. The Development of Private Law under the Code

The foundation was thus laid for courts of law and legal scholarship, in characteristic cooperation, to bring the letters of the law to life, to interpret and develop the provisions contained in the code, and to adapt them to new circumstances.133 The details of this process are analysed in a new, historical commentary on the German Civil Code.134 A suitable methodological background was provided by the interest-based approach which was established by Philipp Heck but can ultimately be traced back to Rudolf von Jhering.135 After 1945, the focus on interests was substituted by an emphasis on the balancing of evaluations.136 Courts and legal writers attempted to tackle the problems arising from awkwardly formulated, or idiosyncratic, provisions, from a lack of systematic coordination (the relationship between the rules on unjustified enrichment and those on so-called owner-possessor relationships), from individual rules which soon turned out to be unsuitable (the six-month prescription period, running from the moment of delivery for claims based on latent defects in contracts of sale), or from the fact that the scope of application of a provision came to be seen as too narrow (the in pari turpitudine rule, as contained in § 817, 2 BGB) or too wide (mortuus redhibetur, as adopted in § 350 BGB). ‘Gaps in the law’137 had to be filled, drafting mistakes had to be corrected, and indeterminate legal concepts had to be specified. Legal solutions had to be found, on the basis of the considerations underlying the regulations in the code, for complex patterns of facts (the various categories of three-party situations in the law of unjustified enrichment). New legal questions, not even imaginable at the beginning of the twentieth century, had to be solved (wrongful birth). New types of contracts which came to be established in business life (such as leasing), had to be brought within the system of contracts provided by the BGB. Changes in social mores had to be accommodated, such as the commercialization of ever increasing aspects of life, including holidays and leisure time. The law of damages and of unjustified enrichment, as well as other areas, where the BGB contains hardly more than a number of general concepts and provisions, had to be filled with finely nuanced rules and doctrines.
Spacious doctrinal edifices have been created even where the BGB contains hardly more than individual building blocks (Störung der Geschäftsgrundlage). Some of these doctrines have been developed in spite of the fact that there does not really exist a ‘legal gap’ in the BGB, others have been smuggled into the code along side-paths which had not been designed for that purpose (the right to an established and operative business). New systematic schemes have been devised (enrichment by transfer, enrichment based on an encroachment) and new theoretical frameworks came to be established (liability based on reasonable expectations). The ‘materialization’ of German contract law was evident not only in acts of special legislation outside the BGB – such as the Standard Terms of Business Act, or the rights of revocation contained in a number of consumer protection statutes – but also in the way in which rules like § 138 I BGB came to be applied, for instance, to instalment credit transactions, or to contracts of suretyship entered into by an impecunious wife or child of the main debtor, or in the scope of application given to a doctrine such as culpa in contrahendo.138 The openness and flexibility of the Generalklauseln turned out to be a curse under the National Socialist regime, and a blessing under the Basic Law of 1949. The doctrine of the indirectly horizontal effect139 led to German law being adjusted to the system of values embodied in the fundamental rights provisions of the Basic Law; but it also increasingly placed the Federal Constitutional Court in the position of an irregular supreme court of appeal in private law disputes.140 Occasionally even decisions by the Federal Supreme Court which were clearly contra legem have been sanctioned by the Federal Constitutional Court in view of certain evaluations derived from the Basic Law.141
The American comparative lawyer John P. Dawson has famously referred to a German ‘case law revolution’.142 A large number of ‘legal discoveries’143 has been made. Much of what has been discovered is new. But often we also find old wine being poured into new vessels. This is true wherever the rules of the BGB constitute pandectist doctrine in statutory form, where we are dealing with rules of interpretation such as the interpretatio contra eum qui clarius loqui debuisset, or with general maxims underlying the BGB without specifically having been restated in the code (dolo agit qui petit quod statim redditurus est). Wherever a problem has not been decided by the draftsmen of the code but has been left to legal doctrine, the pandectist textbooks also, not rarely, point the way towards the most appropriate solution. We observe the phenomenon of a renaissance of rules and concepts from an ostensibly outdated past (utile per inutile non vitiatur),144 recourse to the sources of the ius commune continues to be of considerable significance for the proper evaluation and interpretation of the provisions contained in the BGB. Ulrich Huber’s great monograph on the law of breach of contract145 can serve as a particularly impressive, as well as comparatively recent, confirmation for the truth of this assertion.

XI. Criticism of the BGB

For more than one hundred years, the BGB has been both a characteristic manifestation and a constituent feature of German legal culture. It has been, and has remained, modern as a result of having provided a framework for an organic development of the law. None the less, there has also always been criticism. This tradition goes back to the period immediately after the publication of the First Draft in 1888. Protagonists of a fundamental line of criticism were then, in particular, the members of the women’s movement, the socialists, and the legal Germanists; they regarded the code as patriarchal, insensitive to social issues, not readily comprehensible, and too pervasively Romanist in spirit, form, and substance.146 Dieter Schwab has recently demonstrated that such criticism continued after the BGB’s entry into force and that it was, above all, taken up with renewed vigour in times of upheaval.147 Thus in 1919, as Otto von Gierke had done around the turn of the new century Justus Wilhelm Hedemann pointed out the BGB’s lack of character: ‘It is timid and dull, it displays no vigorous spirit, no characteristic personality’.148 It was oriented towards the conservative and prosperous citizen. This was also disliked by the BGB’s critics during the time of National Socialism. The code was thought to be characterized by an exaggerated individualism and to reflect a materialistic world order, it was regarded as ‘un-German’, removed from the reality of life, and scholastic. The longing for a law that was ‘German’ now became mixed up with racist ideology.149 The completion of a ‘People’s Code’, prepared under the auspices of an Academy for German Law by the elite of professors of private law, as far as they were still active in German universities,150 was prevented by the collapse of the regime. The workers’ and farmers’ paradise of post-war East Germany found the BGB no more appealing than the Nazi state. In 1965 a family law code was enacted and, in 1976, those parts of the BGB that had still been in force until then were replaced by a socialist civil code. In West Germany, the so-called student revolts from 1967 onwards revived the aversion to the BGB: it was of no use for regulating the ‘social processes of our time’.151 The ideological bias of a large part of the fundamentalist opposition to the BGB should not be allowed to obscure the fact that the code has never engendered feelings of affection. Nor has it become a popular part of the German cultural heritage, and it has no share in the creation of a national identity comparable to that of the Code civil in France, or the common law in England. Most German lawyers, in the words of Hein Kotz, pay their code ‘a kind of cool, almost grudging tribute’.152 Thus, it is hardly surprising that the code’s 100th birthday passed without great celebration by either the general public or the legal community. In 1996 and 2000, a number of articles appeared attempting to provide a detached assessment,153 an occasional colloquium was held,154 and here and there a series of lectures was organized.155 No Festschrift was dedicated to the BGB (quite in contrast, incidentally, to the Federal Supreme Court on the occasion of its 50th birthday, celebrated also in 2000).156 The general tone of the centenary contributions was not exuberant. The technical quality of the code was praised, as ever, as were its intellectual maturity and the fine sense of legislative self-restraint. German lawyers appreciate the BGB as a stable basis for their work. In other countries, it has always been regarded as a typical product of German legal scholarship (‘Never, I should think, has so much first-rate brain power been put into an act of legislation’: F.W. Maitland);157 not surprisingly therefore, it has had a greater impact on legal theory and legal doctrine in other European countries than on foreign legislation.158 Still, however, it was received in Greece (with the result that that country is, today, normally regarded as part of the Germanic legal family); it shaped the reform of the Austrian Civil Code in 1914-16; and it influenced the codifications in Italy (1942), Portugal (1966), and the Netherlands (1992). In discussions concerning law reform in the formerly socialist countries and the harmonization of private law in Europe, however, the BGB has often been regarded as outdated. This is, as far as contract law is concerned, largely due to the fact that the Convention on Contracts for the International Sale of Goods has established itself as a more suitable model. Also, a number of the relevant doctrines have been raised by the BGB to a level of abstraction unfamiliar to most lawyers outside Germany: for they are dealt with in the General Part of the BGB, not just the general part of the law of obligations, or of contract law.
Also, of course, it has to be acknowledged that the BGB did in fact contain a number of key provisions that were increasingly regarded as deeply unsatisfactory. They include, as far as the law of obligations is concerned, delictual liability for others in terms of § 831, which is still based on the fault principle in spite of a reversal of the onus of proof, the restrictive attitude with regard to granting compensation for immaterial damage (§§ 847 and 253 BGB), the excessively differentiated law of extinctive prescription, the outdated system of liability for latent defects in relation to contracts of sale and contracts for work, and the badly coordinated restitution regimes contained in §§ 346 ff. and 812 ff. BGB respectively. In one of these cases, the Federal Supreme Court (with the approval of the Federal Constitutional Court)159 has gone so far as partially to derogate the relevant rule (§ 253 BGB);160 in another (§ 831 BGB), the courts have attempted to provide workable solutions by extending the regime provided in § 31 BGB161 and by opening up a wide grey area between delict and contract which they have subjected to the contractual regime;162 in the other cases they have explored a multitude of subtle ways to get around the problem but have, at the same time, frequently created new difficulties of delimitation or conflicts in evaluation. In the area of liability for latent defects contractual practice has, of course, also helped to find appropriate solutions. The Ministry of Justice intended to deal with two of the problem areas mentioned above and therefore, in 1967, published a draft statute for the amendment and supplementation of provisions dealing with the law of damages. These proposed reforms have, however, never been implemented.163

XII. The Modernization of the Law of Obligations

The idea of a comprehensive reform of the law of obligations seems to be attributable to the then Minister of Justice, Hans-Jochen Vogel. He first presented it to the Federal Parliament in 1978 and subsequently also to the 52nd Deutscher Juristentag (Meeting of the Association of German Lawyers).164 The main concerns motivating the reform were (i) the integration of a number of special statutes into the BGB (such as, for example, the Standard Terms of Business Act, the Act on Instalment Sales, and several strict liability statutes), (ii) the incorporation of new types of contractual relationships into the BGB (such as doctors’ contracts, contracts concluded with old-age and nursing homes, contracts about the supply of energy, and contracts between private clients and their banks), (iii) the reform of a number of specific types of obligations already dealt with in the BGB (sale, contracts for work, the law of unjustified enrichment, delict), and (iv) the need for reshaping the general law of obligations, particularly for adapting it to new developments on the international level.165
The Ministry then requested a number of academic opinions, which were published in three large volumes in 1981 and 1983.166 Each of the reporters had the task of investigating an area of the law of obligations with a view to its need for reform, and of formulating suggestions as to how such reform might be implemented. Almost all areas within the law of obligations were included,167 with the important exception of the law of lease.168 The reports were eagerly discussed, both among academics and the various legal professions;169 thus, for instance, at the beginning of 1983, the Association of Teachers of Private Law devoted a special Conference to the reform of the law of obligations.170 A report on the discussion following the introductory keynote speech171 referred to a mood of ‘sceptical open-mindedness’.172 One year later, the Federal Minister of Justice established a Reform Commission173 headed by the responsible Director-General; it consisted of four delegates from the justice departments of the federal states, five judges, one practising lawyer, one notary, and four professors (Uwe Diederichsen, Hein Kotz, Dieter Medicus, and Peter Schlechtriem).174 The problem areas to be dealt with by the Commission were now limited to the law of breach of contract, liability for defects in contracts of sale and contracts for work, and liberative prescription. The Commission was charged with the task of reshaping the law so as to be clearer and ‘more in keeping with the times’,175 taking account of the way in which the law had developed in practice. Twenty two meetings were held, each of several days’ duration; in 1992, the Commission presented its final report.176 In addition to a general section, that report contained specific proposals for legislation in each of the areas mentioned, as well as the reasoning behind these proposals. As far as the general law of breach of contract is concerned, the Commission followed the lead of the UN Convention on the International Sale of Goods (CISG) in many respects. This was entirely in accordance with the views of the initial reporter on this subject, Professor Ulrich Huber of the University of Bonn, who had answered the question: ‘Is the introduction of a law of breach modelled on the Uniform Sales Law to be recommended?’ in the affirmative (though he had still taken his lead from the Convention relating to a Uniform Law on the International Sale of Goods of 17 July 1973).177
At the 60th Deutscher Juristentag in September 1994, the Commission’s draft proposals were the subject of the deliberations of the private law section.178 In spite of occasional fundamental criticism by distinguished academics,179 and outright rejection of the draft by representatives of commerce and industry, the general sentiment towards the draft was favourable. The report summing up the proceedings of the Deutscher Juristentag in one of the two major general law reviews recorded ‘an encouraging result’ and appealed to the Government finally to put its words into action;180 another reporter commented on a discussion that had gone much more smoothly than most participants would have expected.181 According to Ernst A. Kramer,182 the discussion displayed ‘a fundamentally positive attitude’, which also manifested itself in the results of various votes taken at the meeting; by and large they were very heartening’ for the Commission.183 Apart from that, however, there was no broadly-based discussion of the draft, either before or after the Juristentag in Münster.184 This was due to an increasingly widespread impression that the draft had disappeared into a drawer in the Ministry of Justice and that its implementation was no longer likely to happen. The excitement associated with an impending reform made way for a general sentiment of indifference. This ended in September 2000 when suddenly something like a bombshell was dropped on the German legal community: the publication of a 630-page ‘Discussion Draft’ of a statute modernizing the law of obligations.185 The direct trigger for the Discussion Draft was the enactment of the Consumer Sales Directive and the need for its implementation by 1 January 2002. There can be no doubt that this Directive could have been implemented by effecting a number of comparatively marginal adjustments to German sales law.186 The Government had, however, decided to use this opportunity finally to carry out the long-postponed reform of the law of obligations. As a result, the entire project was now placed under an enormous pressure of time. This was highly problematic in view of the fact that the Discussion Draft (i) extended the reform agenda that had previously come to be accepted (in particular, it was now proposed to incorporate a number of special statutes concerning consumer protection into the BGB), (ii) even in so far as it dealt with subjects covered by the Draft of the Reform Commission, sometimes significantly deviated from that Draft (particularly concerning the law of prescription), and (iii) had not been brought up to date even where it followed the recommendations of that Commission; thus, it failed to take account of recent international initiatives in contract law (the publication of the Principles of European Contract Law and of the UNIDROIT Principles of International Commercial Contracts)187 and of new studies fundamentally affecting our perception of German contract law.188 Academic criticism was not, therefore, long in coming. It was articulated particularly strongly at a Symposium of German professors in private law held at the University of Regensburg in November 2000.189 It induced the Government to establish two working groups charged with the task of critically examining the Discussion Draft and the recommendations contained in it. The working group concerning breach of contract consisted mainly of professors;190 the one looking into the law of prescription, sales law, and other matters was constituted by officials from the Ministries of Justice of the various German Länder, judges of the Federal Supreme Court, members of the earlier Reform Commission, practitioners, and one professorial representative.191 These working groups only had a period of about two months for their deliberations. None the less, they managed to effect a number of substantial changes. In early May 2001 a Government Draft was published which very largely accepted the recommendations of the working groups but also took account of suggestions and requests which had emerged in the course of hearings of interest groups affected by the reform.192 In the course of summer and autumn 2001 the Government Draft was pushed through Parliament by way of an accelerated procedure. In the process, it was again repeatedly changed.193 The Modernization of the German Law of Obligations Act was finally approved by the Federal Parliament in October and by the Council of State Governments in early November 2001, and it was promulgated on 26 November 2001. A little more than five weeks later it entered into force.
The reform legislation has divided the German private law professoriate in an unprecedented manner. Strong language has been used to scold the intellectual immaturity of the new law, and the finger of scorn has been pointed at many of its aspects. Others have emphasized the Government’s readiness to listen to academic criticism, to involve leading legal academics in the process of revising the Discussion Draft, and to follow many of their suggestions. In the meantime, German lawyers have had to come to terms with the reform, however critically it may have to be evaluated.194 An enormous amount of legal literature has appeared, whether in the form of textbooks, commentaries, or even articles. It continues to grow with frightening rapidity. Much more than has hitherto been the case German authors will, however, have to cease to look at German law in isolation. They will have to take account of, and at the same time contribute to, what must be considered to be one of the most important legal developments of our time: the increasing Europeanization of private law.195

XIII. The Europeanization of Private Law

From about the mid-1980s, the European Communities began to enact Directives which profoundly affect core areas of the national systems of private law.196 Milestones of this development were the Directives concerning liability for defective products, contracts negotiated away from Business premises, consumer credit, package travel, unfair terms in consumer contracts, and consumer sales.197 As a result, the requirement of interpreting provisions of national law in conformity with the Directives on which they are based has attained considerable practical importance.198 In addition, the European Court of Justice, though not a Supreme Court for private law disputes in the European Union, has started to fashion concepts, rules, and principles which are relevant not only for the law of the Union but also for the private laws of its Member States.199 Several international commissions and groups of experts are busy developing or ‘finding’ (by means of a type of restatement) common principles of a European law of contract, torts, or even trusts or family law.200 Ambitious research projects strive to establish the ‘common core’ of European private law.201 The codification of European private law has been championed, consistently, by the European Parliament, first in a resolution of May 1989.202 The Commission of the European Union has, more cautiously, issued an action plan for a more coherent European contract law203 which, inter alia, aims at the development of a ‘common frame of reference’. This frame of reference is supposed to provide the basis for further deliberations on an optional instrument in the field of European contract law.204 The Principles of European Contract Law, drawn up by the so-called ‘Lando Commission’205 constitute a blueprint for such instrument. Among academics across Europe the desirability of a European Civil Code has become a hotly contested issue.206 Two international initiatives have already embarked on an attempt to devise draft codes for the field of contract law and beyond.207 In legal education, too, there are signs of a change of perspective.208 The mobility of law students within the European Union is promoted by the extraordinarily successful Erasmus (now Socrates) Programme. More and more law faculties are trying to give themselves a ‘European’ profile by offering integrated study programmes. Institutes and chairs of European private law, European business law, or European legal history have been established. Models of legal harmonization from Europe’s past209 and from other parts of the world210 are receiving increasing attention. Moreover, the national isolation of law and legal scholarship is being overcome by the uniform private law laid down in international conventions. Of central importance, in this respect, is the success story of the Convention on the International Sale of Goods, which is beginning to play an increasingly important role in private law adjudications by national Supreme Courts.211 The development sketched, so far, in the roughest outline is also reflected in the emergence of a legal literature focusing on European, rather than merely national, law. This began in the fields of comparative law and legal history.212 Since then, we have seen the publication of a textbook on the European law of contract,213 delict, and unjustified enrichment,214 of comparative casebooks,215 of series of monographs dealing with European legal history and European private law, of at least three legal Journals which are devoted to European private law,216 and of collections of the foundational texts in the field.217
At the same time it is clear that we will still be faced, in the foreseeable future, with the co existence of a great number of national systems of private law in Europe. Much would, however, be gained, if these could be assimilated gradually, or organically. This requires the protagonists of national legal development to be aware of what happens in the other national legal systems and on the European level, critically to examine quirks and idiosyncracies of their own legal systems, and to adopt, whenever possible, a harmonizing approach.218 Those responsible for determining the direction of European private law, on the other hand, have to take account of the national legal experiences which have been gathered by sophisticated courts and legal writers.
It is in this spirit that the studies collected in the present volume attempt to assess the recent reform of German contract law.


* Prof. Dr. Dr. h.c. mult. FBA FRSE; Director, Max Planck Institute for Foreign Private Law and Private International Law, Hamburg. This article first appeared in: Reinhard Zimmermann, The New German Law of Obligations: Historical and Comparative Perspectives (2005), 5 ff.

1 See Reinhard Zimmermann, ‘Codification: History and Present Significance of an Idea’, (1995) 3 European Review of Private Law 95 ff. (with further references).

2 Klaus Luig, ‘The Institutes of National Law in the 17th and 18th Centuries’, [1972] Juridical Review 193 ff.

3 Rudolf von Jhering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, vol. I, 6th edn. (1907), 15. Jhering regarded this state of affairs as ‘humiliating and undignified’.

4 The standard account is Franz Wieacker, A History of Private Law in Europe (1995) (transl. Tony Weir); cf. also Paul Koschaker, Europa und das römische Recht, 4th edn. (1966) (on the significance of Roman law for European legal culture); Helmut Coing, Europäisches Privatrecht, vol. I (1985); vol. II (1989) (on the history of private law doctrine); Peter Oestmann, Rechtsvielfalt vor Gericht (2002) (on early modern German court practice). For an overview, see Reinhard Zimmermann, ‘Roman Law and the Harmonization of Private Law in Europe’, in Arthur Hartkamp et al. (eds.), Towards a European Civil Code, 3rd edn. (2004), 21 ff.

5 The expression took root as a result of Samuel Stryk’s work Specimen usus moderni pandectarum, Halae(1690–1712); see Klaus Luig, ‘Samuel Stryk (1640–1710) und der “Usus modernus pandectarum”‘, in Die Bedeutung der Wörter: Studien zur europäischen Rechtsgeschichte, Festschrift für Sten Gagnér (1991), 219 ff.

6 The Afschaffingswet was dated 16 May 1829; for all details, see Hendrik Kooiker, Lex Scipta Abrogata: De derde renaissance van het romeinse recht, vol. I (1996).

7 Jan Lokin, ‘Die Rezeption des Code Civil in den nördlichen Niederlanden’, (2004) 12 Zeitschrift für Europäisches Privatrecht 932 ff.

8 Generally on the reception of the French Code civil, see Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, 3rd edn. (1998) (transl. Tony Weir), 98 ff.

9 See the contributions in Reiner Schulze (ed.), Französisches Zivilrecht in Europa während des 19. Jahrhunderts (1994), and in Reiner Schulze (ed.), Rheinisches Recht und Europäische Rechtsgeschichte (1996); see also Elmar Wadle, Französisches Recht in Deutschland (2002).

10 Elmar Wadle, ‘Rezeption durch Anpassung: Der Code Civil und das Badische Landrecht: Erinnerung an eine Erfolgsgeschichte’, (2004) 12 Zeitschrift für Europäisches Privatrecht 947 ff.

11 For an overview of the laws applicable in Germany at the end of the nineteenth century, see ‘Anlage zur Denkschrift zum BGB’, in Benno Mugdan (ed.), Die gesammten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, vol. I (1899), 844 ff.; and see Allgemeine Deutsche Rechts- und Gerichtskarte, 1896 (re-edited in 1996 by Diethelm Klippel).

12 For details, and references, see Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001), 11 ff.

13 Koschaker (n. 4) 292.

14 Emil Friedberg, Die künftige Gestaltung des deutschen Rechtsstudiums nach den Beschlüssen der Eisenacher Konferenz (1896), 7 ff.

15 Zimmermann (n. 12) 3 ff.

16 Hans-Peter Haferkamp, Georg Friedrich Puchta und die ‘Begriffsjurisprudenz’ (2004).

17 Ulrich Falk, Ein Gelehrter wie Windscheid: Erkundungen auf den Feldern der sogenannten Begriffsjurisprudenz (1989).

18 Bernhard Windscheid, ‘Das römische Recht in Deutschland’ (1858), in idem, Gesammelte Reden und Abhandlungen, ed. Paul Oertmann (1904), 48 ff.

19 Friedrich Carl von Savigny, ‘Ueber den Zweck dieser Zeitschrift’, (1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 3.

20 Koschaker (n. 4) 269. On the ‘discovery of legal history’ in the nineteenth century, see Wieacker (n. 4) 330 ff.

21 On Savigny’s conception of legal science, see Joachim Rückert, Idealismus, Jurisprudenz und Politik bei Friedrich Carl von Savigny (1984).

22 Friedrich Carl von Savigny, System des heutigen Römischen Rechts, vol. I (1840), xv.

23 Friedrich Carl von Savigny, (1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 6.

24 Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814, easily accessible in Hans Hattenhauer (ed.), Thibaut and Savigny: Ihre programmatischen Schriften, 2nd edn. (2002), 126.

25 Bernhard Windscheid, ‘Recht und Rechtswissenschaft’ (1854), in idem (n. 18) 16.

26 For France, see Alfons Bürge, Das französische Privatrecht im 19. Jahrhundert (1991); for Austria: Werner Ogris, Der Entwicklungsgang der österreichischen Privatrechtswissenschaft im 19. Jahrhundert (1968); for Italy: the contributions in Reiner Schulze (ed.), Deutsche Rechtswissenschaft und Staatslehre im Spiegel der italienischen Rechtskultur während der zweiten Hälfte des 19. Jahrhunderts (1990).

27 Wieacker (n. 4) 309 ff.

28 Wieacker (n. 4) 290 ff.

29 Savigny (n. 22) xiv ff.

30 Bernhard Windscheid, ‘Die geschichtliche Schule in der Rechtswissenschaft’ (1878), in idem (n. 18) 66.

31 A.F.J. Thibaut, Über die Notwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland (1814), easily accessible today in Hattenhauer (n. 24) 37 ff.

32 Savigny (n. 24) passim, for example, 79 ff.

33 Theodor Mommsen, ‘Die Aufgabe der historischen Rechtswissenschaft’, in idem, Gesammelte Schriften, vol. III (1907), 587.

34 Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, 1st edn., vol. I (1852), 2; cf. also Walter Wilhelm, ‘Das Recht im römischen Recht’, in Franz Wieacker and Christian Wollschläger (eds.), Jherings Erbe (1970), 228 ff.; Horst Heinrich Jakobs, Wissenschaft und Gesetzgebung im bürgerlichen Recht nach der Rechtsquellenlehre des 19. Jahrhunderts (1983), 76 ff.

35 See, for example, his address in memory of Savigny: ‘Festrede zum Gedenken an Savigny’ (1879), in idem (n. 18) 81 ff. On Windscheid’s attitude towards Savigny, see Oertmann (in his preface to the volume just mentioned, XXVII ff.); Jakobs (n. 34) 101 ff.; Falk (n. 17) 174 ff.

36 Windscheid (n. 30) 70.

37 [1900] Juristische Wochenschrift 1.

38 See Ulrich Huber, ‘Das Reichsgesetz über die Einführung einer allgemeinen Wechselordnung für Deutschland vom 26. November 1848’, [1978] Juristenzeitung 785.

39 Christoph Bergfeld, ‘Preußen und das Allgemeine Deutsche Handelsgesetzbuch’, (1987) 14 Ius Commune 101 ff.; and see Karsten Schmidt, Das HGB und die Gegenwartsaufgaben des Handelsrechts (1983). For the modernization of commercial law in the nineteenth century in general, see Karl Otto Scherner (ed.), Modernisierung des Handelsrechts im 19. Jahrhundert (1993); Arnold J. Kanning, Unifying Commercial Laws of Nation-States (2003), 46 ff.

40 On which see Peter Landau, ‘Die Reichsjustizgesetze von 1879 und die deutsche Rechtseinheit’, in Vom Reichsjustizamt zum Bundesministerium der Justiz: Zum 100jährigen Gründungstag des Reichsjustizamtes (1977), 161 ff.

41 On which see, on the occasion of its 100th anniversary, Arno Buschmann, ‘100 Jahre Gründungstag des Reichsgerichts’, [1979] Neue Juristische Wochenschrift 1966 ff.; Elmar Wadle, ‘Das Reichsgericht im Widerschein denkwürdiger Tage’, [1979] Juristische Schulung 841 ff. On the Reichsgericht‘s predecessor, the Supreme Commercial Court, first of the Norddeutscher Bund and later of the Reich (it existed from 1870–79), see Herbert Kronke, ‘Rechtsvergleichung und Rechtsvereinheitlichung in der Rechsprechung des Reichsoberhandelsgerichts’, (1997) 5 Zeitschrift für Europäisches Privatrecht 735 ff.

42 On Eduard von Simson, see James E. Dow, A Prussian Liberal: The Life of Eduard von Simson (1981); Bernd-Rüdiger Kern and Klaus-Peter Schroeder (eds.), Eduard von Simson (1810–99) (2001). On the rise of Jewish lawyers and lawyers of Jewish descent in nineteenth-century Germany, see Peter Landau, ‘Juristen jüdischer Herkunft im Kaiserreich und in der Weimarer Republik’, in Helmut Heinrichs, Harald Franzki, Klaus Schmalz and Michael Stolleis (eds.), Deutsche Juristen jüdischer Herkunft (1993), 133 ff.; Reinhard Zimmermann, ‘ “Was Heimat hieß, nun heißt es Hölle”: The emigration of lawyers from Hitler’s Germany: political background, legal framework and cultural context’, in Jack Beatson and Reinhard Zimmermann (eds.), Jurists Uprooted: German-speaking Emigré Lawyers in Twentieth Century Britain (2004), 9 ff.

43 See, in particular, Werner Schubert, in Horst Heinrich Jakobs and Werner Schubert (eds.), Die Beratung des Bürgerlichen Gesetzbuchs in systematischer Zusammenstellung der unveröffentlichten Quellen, Materialien zur Entstehungsgeschichte des BGB (1978), 27 ff.; Barabara Dölemeyer, ‘Das Bürgerliche Gesetzbuch für das Deutsche Reich’, in Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol. III/2 (1982), 1572 ff.; Michael John, Politics and the Law in Late Nineteenth Century Germany: The Origins of the Civil Code (1989); Fritz Sturm, ‘Der Kampf um die Rechtseinheit in Deutschland – Die Entstehung des BGB und der erste Staudinger’, in Michael Martinek and Patrick Sellier (eds.), 100 Jahre BGB – 100 Jahre Staudinger (1999), 24 ff. Cf. also the table by Stefan Stolte, printed in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, vol. I (2003), xxvii ff.

44 Bibliographie der amtlichen Materialien zum Bürgerlichen Gesetzbuche für das Deutsche Reich und zu seinem Einführungsgesetze (1897).

45 Mugdan (n. 11).

46 Horst Heinrich Jakobs and Werner Schubert (eds.), Die Beratung des Bürgerlichen Gesetzbuchs in systematischer Zusammenstellung der unveröffentlichten Quellen, 16 vols. (1978–2002).

47 Werner Schubert (ed.), Die Vorlagen der Redaktoren für die erste Kommission zur Ausarbeitung des Entwurfs eines Bürgerlichen Gesetzbuches, 15 vols. (1980–86).

48 Windscheid (n. 18) 48.

49 See, however, Ernst von Wildenbruch in his impassioned poem ‘Das deutsche Recht’, [1900] Deutsche Justiz 1.

50 Frederic William Maitland, ‘The Making of the German Civil Code’, in H.A.L. Fisher (ed.), The Collected Papers of Frederic William Maitland, vol. III (1911), 480.

51 In this regard, see Thomas Honsell, Historische Argumente im Zivilrecht (1982), 22 ff., with references.

52 See James Q. Whitman, The Legacy of Roman Law in the German Romantic Era (1990).

53 On the notion of a judge as a ‘subsumption machine’, see Regina Ogorek, Richterkönig oder Subsumtionsautomat? Zur Justiztheorie im 19. Jahrhundert (1986), 1 ff.

54 Hans Wüstendörfer, ‘Die deutsche Rechtswissenschaft am Wendepunkt’, (1913) 110 Archiv für die civilistische Praxis 224.

55 See, for example, Ernst Zitelmann, Die Gefahren des Bürgerlichen Gesetzbuches für die Rechtswissenschaft (1896), 14.

56 See, for example, Rudolph Sohm, ‘Das Studium des römischen Rechts’, [1908] Deutsche Juristenzeitung 39 and the references in Honsell (n. 51) 24.

57 See Wieacker (n. 4) 463 ff.; Honsell (n. 51) 25.

58 On which see, for example, Wieacker (n. 4) 457 ff.

59 On the tradition of legislation comparée in the nineteenth century, see, for example, Helmut Coing, ‘Rechtsvergleichung als Grundlage von Gesetzgebung im 19. Jahrhundert’, (1978) 7 Ius Commune 168 ff.; idem, Europäisches Privatrecht, vol. II (1989), 56 ff.

60 This quotation is from an article published in 1913/14; the relevant passage is cited in Ernst Rabel, ‘Aufgabe und Notwendigkeit der Rechtsvergleichung’, in idem, Gesammelte Aufsätze, vol. III (1967), 13 ff.

61 See Paul Laband, [1906] Deutsche Juristenzeitung, col. 2 ff. (who states that the literature in the area of private law broke forth ‘with the suddenness and violence of a cloudburst’).

62 See Sibylle Hofer, ‘Haarspalten, Wortklauben, Silbenstechen? 100 Jahre Lehrbücher zum BGB: Eine Lebensbilanz’, [1999] Juristische Schulung 112 ff.

63 On which, see Heinz Mohnhaupt, ‘Die Kommentare zum BGB als Reflex der Rechtsprechung (1897–1914)’, in Ulrich Falk and Heinz Mohnhaupt (eds.), Das Bürgerliche Gesetzbuch und seine Richter: Fallstudien zur Reaktion der Rechtspraxis auf die Kodifikation des deutschen Privatrechts (1896–1914) (2000), 495 ff.

64 See Mohnhaupt (n. 63) 495.

65 For early criticism, see Ludwig Kuhlenbeck, Von den Pandekten zum Bürgerlichen Gesetzbuch: Eine dogmatische Einführung in das Studium des Bürgerlichen Rechts, Part I (1898), vii; and cf. Mohnhaupt (n. 63) 495 ff.

66 See the characteristic comment in (1900) 29 Juristische Wochenschrift 4.

67 See, for example, Heinz Hübner, Kodifikation und Entscheidungsfreiheit des Richters in der Geschichte des Privatrechts (1980), 67.

68 Koschaker (n. 4) 190.

69 See Kuhlenbeck (n. 65) vii. Generally on the ‘historical argument’ in contemporary legal thinking and practice, see Honsell (n. 51) 47 ff.

70 Friedberg (n. 14).

71 Konrad Cosack, in Hans Planitz (ed.), Die Rechtswissenschaft der Gegenwart in Selbstdarstellungen, vol. I (1924), 16.

72 On which see, most recently, Ulrich Huber, Leistungsstörungen, vol. I (1999), 97 ff.

73 Infra p. 92.

74 Dirk A. Verse, Verwendungen im Eigentümer-Besitzer-Verhältnis (1999), has recently demonstrated, with regard to compensation for improvements, the specific value of an historical and comparative approach.

75 This view was expressed, for example, by one of the most influential early commentators on the BGB, A. Achilles (judge of the Reichsgericht): cf. Mohnhaupt (n. 63) 502.

76 Bernhard Windscheid and Theodor Kipp, Lehrbuch des Pandektenrechts, vol. I, 9th edn., § 28, note 4; and see the revisionist works by Falk and Ogorek (nn. 17 and 53).

77 Gustav Hugo, Lehrbuch des heutigen Römischen Rechts, 7th edn. (1826), 282.

78 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996), 1022 ff., 1031 ff.; Jan Schröder, ‘Die zivilrechtliche Haftung für schuldhafte Schadenszufügungen im deutschen usus modernus’, in Letizia Vacca (ed.), La responsabilità civile da atto illecito nelle prospettiva storico-comparatistica (1995), 147 ff.

79 See, for instance, the references in Windscheid and Kipp (n. 76) § 451, note 1 (concerning loss resulting from unlawful arrest).

80 This enabled Zachariae von Lingental to discuss the French law of delict in a way which hardly differed from German law: Handbuch des Französischen Civilrechts, vol. II, 6th edn. (1875), § 444.

81 See, for example, Heinrich Dernburg, Pandekten, vol. I, 5th edn. (1896), § 199, 4.

82 Regina Ogorek, ‘Actio negatoria und industrielle Beeinträchtigung des Grundeigentums’, in Helmut Coing and Walter Wilhelm (eds.), Wissenschaft und Kodifikation des Privatrechts im 19. Jahrhundert, vol. IV (1979), 40 ff.; Andreas Thier, ‘Zwischen actio negatoria und Aufopferungsanspruch: Nachbarliche Nutzungskonflikte in der Rechtsprechung des 19. und 20. Jahrhunderts’, in Falk and Mohnhaupt (n. 63) 407 ff.

83 Nils Jansen, Die Struktur des Haftungsrechts: Geschichte, Theorie und Dogmatik außervertraglicher Ansprüche auf Schadensersatz (2003), 361 ff.

84 Detlef Kleindiek, Deliktshaftung und juristische Person (1997), 63 ff.

85 Kronke, (1997) 5 Zeitschrift für Europäisches Privatrecht 735 ff.

86 J. Michael Rainer, ‘Zur Rechtsprechung des Reichsgerichts bis zum Inkrafttreten des BGB: Ein Modellfall für den Europäischen Gerichtshof ‘, (1997) 5 Zeitschrift für Europäisches Privatrecht 751 ff.

87 Josef Partsch, Vom Beruf des römischen Rechts in der heutigen Universität (1920), 39.

88 Hans-Peter Haferkamp, ‘Die exceptio doli generalis in der Rechtsprechung des Reichsgerichts vor 1914’, in Falk and Mohnhaupt (n. 63) 1 ff.

89 Tomasz Giaro, ‘Culpa in contrahendo: eine Geschichte der Wiederentdeckungen’, in Falk and Mohnhaupt (n. 63) 113 ff.

90 Klaus Luig, ‘Die Kontinuität allgemeiner Rechtsgrundsätze: Das Beispiel der clausula rebus sic stantibus’, in Reinhard Zimmermann, Rolf Knütel and Jens Peter Meincke (eds.), Rechtsgeschichte und Privatrechtsdogmatik (2000), 171 ff.

91 Hans Peter Glöckner, ‘Die positive Vertragsverletzung’, in Falk and Mohnhaupt (n. 63) 155 ff.; see also Klaus Luig, ‘Die “Privilegierung” des Verkäufers’, in Mélanges en l’honneur de Carlo Augusto Cannata (1999), 317 ff.; Huber (n. 72) 78 ff.

92 And thereby continued a development which has its origins in legal scholarship and legislation of the nineteenth century; see Zimmermann (n. 12) 94 ff., with references; Glöckner (n. 91) 167 ff.

93 Jörg Neuner, ‘Die Entwicklung der Haftung für Drittschäden’, in Falk and Mohnhaupt (n. 63) 193ff.; cf. also Sybille Hofer, ‘Drittschutz und Zeitgeist: Ein Beitrag zur privatrechtlichen Zeitgeschichte’, (2000) 117 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 377 ff.

94 Reinhard Zimmermann and Dirk A. Verse, ‘Die Reaktion des Reichsgerichts auf die Kodifikation des deutschen Deliktsrechts (1900–14)’, in Falk and Mohnhaupt (n. 63) 319 ff.

95 Ernst von Caemmerer, ‘Wandlungen des Deliktsrechts’, in Hundert Jahre deutsches Rechtsleben: Festschrift zum hundertjährigen Bestehen des Deutschen Juristentages 1860–1960, vol. II (1960), 49 ff.

96 Mathias Schmoeckel, ‘Von der Vertragsfreiheit zu typisierten Verkehrspflichten: Zur Entwicklung des Vertretungsrechts’, in Falk and Mohnhaupt (n. 63) 77 ff.

97 Filippo Ranieri, ‘Kaufrechtliche Gewährleistung und Irrtumsproblematik: Kontinuität und Diskontinuität in der Judikatur des Reichsgerichts nach 1900’, in Falk and Mohnhaupt (n. 63) 207 ff.

98 See Horst Heinrich Jakobs, Wissenschaft und Gesetzgebung im bürgerlichen Recht nach der Rechtsquellenlehre des 19. Jahrhunderts (1983), 160.

99 See Zimmermann (n. 12) 47 ff.

100 Windscheid (n. 30) 75 ff.

101 Cf., for example, RGZ 78, 239 at 240 ff. (the ‘linoleum’ case, 7 December 1911).

102 Cf., for example, RGZ 91, 21 at 24 (contaminated residence, 5 October 1917).

103 See, for example, the references in Luig (n. 91) 181 ff. Generally, see Reinhard Zimmermann, ‘”Heard melodies are sweet, but those unheard are sweeter …”: Condicio tacita, implied condition und die Fortbildung des europäischen Vertragsrechts’, (1993) 193 Archiv für die civilistische Praxis 165 ff.

104 See, for example, the references in Giaro (n. 89) 130 ff.

105 In this regard, see Thomas Finkenauer, ‘Das entstehungsgeschichtliche Argument als Etikettenschwindel: Zwei Beispiele aus der Rechtsprechung des Reichsgerichts zum Bereicherungsrecht’, in Falk and Mohnhaupt (n. 63) 305 ff.

106 Paul Johnson, History of the Modern World (1983), 1.

107 The relationship between private law and German society in the nineteenth and early twentieth centuries is discussed in four studies by Franz Wieacker which have been collected in the volume Industriegesellschaft und Privatrechtsordnung (1974): Das Sozialmodell der klassischen Privatrechtsgesetzbücher und die Entwicklung der modernen Gesellschaft (1953); Das Bürgerliche Recht im Wandel der Gesellschaftsordnungen (1960); Pandektenwissenschaft und Industrielle Revolution (1966); Der Kampf des 19. Jahrhunderts um die Nationalgesetzbücher (1970). And see now Joachim Rückert, ‘Das BGB und seine Prinzipien: Aufgabe, Lösung, Erfolg’, in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, vol. I (2003), nn. 92 ff.

108 See Andreas Richter, Rechtsfähige Stiftung und Charitable Corporation: Überlegungen zur Reform des deutschen Stiftungsrechts auf der Grundlage einer historisch-rechtsvergleichenden Untersuchung der Entstehung des modernen deutschen und amerikanischen Stiftungsmodells (2001), 40 ff.

109 But see now Sibylle Hofer, Freiheit ohne Grenzen? (2001).

110 Zweigert and Kötz (n. 8) 144.

111 For an overview see Dieter Schwab, Wertewandel und Familienrecht (1993); Rainer Frank, ‘100 Jahre BGB – Familienrecht zwischen Rechtspolitik, Verfassung und Dogmatik’, (2000) 200 Archiv für die civilistische Praxis 401 ff.

112 Udo Wolter, Mietrechtlicher Bestandsschutz (1984); Heinrich Honsell, Privatautonomie und Wohnungsmiete, (1986) 186 Archiv für die civilistische Praxis 115 ff. In September 2001, however, the law of domestic leases was re-incorporated into the BGB.

113 Joachim Rückert, ‘”Frei” und “sozial”: Arbeitsvertrags-Konzeptionen um 1900 zwischen Liberalismen und Sozialismen’, (1992) 23 Zeitschrift für Arbeitsrecht 223 ff.; Klaus Adomeit, ‘Der Dienstvertrag des BGB und seine Entwicklung zum Arbeitsrecht’, [1996] Neue Juristische Wochenschrift 1710 ff.

114 Further examples are provided by § 90a (and, in this connection, a number of other new provisions on the legal status of animals) (on which, see Helmut Heinrichs, in Palandt, Bürgerliches Gesetzbuch, 64th edn. (2005), § 90a, n. 1: a ‘sentimental pronouncement without any effective legal content’) and § 55a (see Palandt/Heinrichs (as above) § 55a, n. 1: ‘contrary to the system of the law’).

115 Rolf Stürner, ‘Der hundertste Geburtstag des BGB – eine nationale Kodifikation im Greisenalter?’, [1996] Juristenzeitung 742.

116 But see Karsten Schmidt, Die Zukunft der Kodifikationsidee: Rechtsprechung, Wissenschaft und Gesetzgebung vor den Gesetzeswerken des geltenden Rechts (1985).

117 See infra pp. 165 ff., 169.

118 For all details, see infra pp. 159 ff., 205 ff.

119 For details, see Gerhard Wagner, Das neue Schadensersatzrecht (2002).

120 See Birgit Grundmann, ‘Die Mietrechtsreform – Wesentliche Inhalte und Änderungen gegenüber der bisherigen Rechtslage’, [2001] Neue Juristische Wochenschrift 2497 ff.; Friedrich Klein-Blenkers, ‘Das Gesetz zur Neugliederung, Vereinfachung und Reform des Mietrechts (Mietrechtsreformgesetz)’, in Barbara Dauner-Lieb, Thomas Heidel, Manfred Lepa and Gerhard Ring (eds.), Das neue Schuldrecht (2002), 506 ff.

121 For details, see Walter Boente and Thomas Riem, ‘Das BGB im Zeitalter digitaler Kommunikation – Neue Formvorschriften’, [2001] Jura 793 ff.; Ulrich Noack, ‘Elektronische Form und Textform’, in Dauner-Lieb, Heidel, Lepa and Ring (n. 120) 441 ff.

122 See Ernst Führich, ‘Zweite Novelle des Reisevertragsrechts zur Verbesserung der Insolvenzsicherung und der Gastschulaufenthalte’, [2001] Neue Juristische Wochenschrift 3083 ff.; Mark Niehuus, ‘Der Reisevertrag’, in Dauner-Lieb, Heidel, Lepa and Ring (n. 120) 322 ff.

123 Ulrich Burgard, ‘Das neue Stiftungsprivatrecht’, [2002] Neue Zeitschrift für Gesellschaftsrecht 697 ff.

124 See Nina Dethloff, ‘Die Eingetragene Lebenspartnerschaft – Ein neues familienrechtliches Institut’, [2001] Neue Juristische Wochenschrift 2598 ff.

125 Windscheid (n. 30) 75.

126 Jakobs (n. 34) 160. He goes on to state that the BGB ‘should not, and will not, control legal scholarship, but should be, and will be, controlled by the latter, if such legal scholarship is itself historical, in the full sense of the word’.

127 Hans-Jürgen Becker, ‘Kommentier- und Auslegungsverbot’, in Handwörterbuch zur deutschen Rechtsgeschichte, vol. II (1978), cols. 963 ff.; Matthias Miersch, Der sogenannte réferé legislatif: Eine Untersuchung zum Verhältnis Gesetzgeber, Gesetz und Richteramt seit dem 18. Jahrhundert (2000).

128 Okko Behrends, ‘Das Bündnis zwischen Gesetzgebung und Dogmatik und die Frage der dogmatischen Rangstufen’, in Okko Behrends and Wolfram Henckel (eds.), Gesetzgebung und Dogmatik (1989), 9 ff.; Jan Schröder, ‘Das Verhältnis von Rechtsdogmatik und Gesetzgebung in der neuzeitlichen Rechtsgeschichte’, in Behrends and Henckel (as above) 37 ff.

129 § 58 I 2 PrALR.

130 § 196, nos. 3 and 9 BGB (old version).

131 § 963 BGB.

132 These Generalklauseln are a characteristic element of German private law; they constitute the most important as well as the most convenient ports of entry for the values of the community. For a famous warning against the dangers inherent in these provisions, see Justus Wilhelm Hedemann, Die Flucht in die Generalklauseln: Eine Gefahr für Recht und Staat (1933).

133 For a general account of the legal development in twentieth-century Germany, see Karl Kroeschell, Rechtsgeschichte Deutschlands im 20. Jahrhundert (1992). For a history of private law during the time of the Weimar Republic, see Knut Wolfgang Nörr, Zwischen den Mühlsteinen: Eine Privatrechtsgeschichte der Weimarer Republik (1988). There is an extensive literature on the nazification of legal life, and private law, during the 1930s: see Zimmermann (n. 42) 54 ff., 58 ff. with references. Bernd Rüthers, Die unbegrenzte Auslegung, 6th edn. (2005), remains of fundamental importance. For the Federal Republic of Germany, see Joachim Rückert, ‘Abbau und Aufbau der Rechtswissenschaft nach 1945’, [1995] Neue Juristische Wochenschrift 1251 ff.; Dieter Medicus, ‘Entscheidungen des BGH als Marksteine für die Entwicklung des allgemeinen Zivilrechts’, [2000] Neue Juristische Wochenschrift 2921 ff.

134 So far, the first volume (covering the General Part of the BGB, i.e. §§ 1–240) has appeared: Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, vol. I (2003); the second volume (covering the general part of the law of obligations, i.e. §§ 241–432) is in preparation for 2006.

135 On Philipp Heck, see now Heinrich Schoppmeyer, Juristische Methode als Lebensaufgabe: Leben, Werk und Wirkungsgeschichte Phillip Hecks (2001).

136 Jens Petersen, Von der Interessenjurisprudenz zur Wertungsjurisprudenz (2001). For a comprehensive analysis of the methods of statutory interpretation in Germany, and their historical development, see Stefan Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent: Eine vergleichende Untersuchung der Rechtsprechung und ihrer historischen Grundlagen, vol. I (2001), 28 ff., 430 ff.

137 On which see, generally, Claus-Wilhelm Canaris, Die Feststellung von Lücken im Gesetz: Eine methodologische Studie über Voraussetzungen und Grenzen der Rechtsfortbildung praeter legem, 2nd edn. (1983).

138 Claus-Wilhelm Canaris, ‘Wandlungen des Schuldvertragsrechts – Tendenzen zu seiner “Materialisierung” ‘, (2000) 200 Archiv für die civilistische Praxis 273 ff.

139 It was developed by Günter Dürig, ‘Grundrechte und Zivilrechtsprechung’, in Festschrift für Hans Nawiasky (1956), 158 ff. and has been adopted by the Federal Constitutional Court in its Lüth decision: BVerfGE 7, 198; on which see David P. Currie, The Constitution of the Federal Republic of Germany (1994), 181 ff.

140 This has been severely criticized: Uwe Diederichsen, ‘Das Bundesverfassungsgericht als oberstes Zivilgericht – ein Lehrstück der juristischen Methodenlehre’, (1998) 198 Archiv für die civilistische Praxis 171 ff.

141 BVerfGE 34, 269 (14 February 1973; the Soraya case). For details, see Zweigert and Kötz (n. 8) 688 ff.; Basil S. Markesinis and Hannes Unberath, The German Law of Torts: A Comparative Treatise, 4th edn. (2002), 415 ff.

142 John P. Dawson, The Oracles of the Law (1968), 432 ff.

143 Hans Dölle, Juristische Entdeckungen (1958), reprinted in Thomas Hoeren (ed.), Zivilrechtliche Entdecker (2001), 5 ff.

144 Theo Mayer-Maly, ‘Die Wiederkehr von Rechtsfiguren’, [1971] Juristenzeitung 1 ff.; Rolf Knütel, ‘Römisches Recht und deutsches Bürgerliches Recht’, in Walther Ludwig (ed.), Die Antike in der europäischen Gegenwart (1993), 43 ff.; Reinhard Zimmermann, ‘Civil Code and Civil Law’, (1994/95) 1 Columbia Journal of European Law 89 ff.

145 Ulrich Huber, Leistungsstörungen, 2 vols. (1999).

146 For details, see Dieter Schwab, (2000) 22 Zeitschrift für Neuere Rechtsgeschichte 325 ff., with references.

147 Schwab (n. 146) 334 ff.

148 In an academic speech in 1919, cited by Schwab (n. 146) 337.

149 Schwab (n. 146) 340.

150 On the project of a ‘People’s Code’, see, for example, Michael Stolleis, ‘Volksgesetzbuch’, in Handwörterbuch zur Deutschen Rechtsgeschichte, vol. V, cols. 990 ff.; Gerd Brüggemeier, ‘Oberstes Gesetz ist das Wohl des deutschen Volkes: Das Projekt des “Volksgesetzbuches” ‘, [1990] Juristenzeitung 24 ff.; Hans Hattenhauer, ‘Die Akademie für Deutsches Recht (1933–44)’, [1986] Juristische Schulung 680 ff.

151 Rudolf Wiethölter in his radio lectures, broadcast by the radio station of Hesse; for details, see Schwab (n. 146) 344 ff.

152 Hein Kötz, in Verhandlungen des 60. Deutschen Juristentages, vol. II/1 (1994), K 9.

153 See, for example, Rolf Stürner, [1996] Juristenzeitung 741 ff.; Mathias Schmoeckel, ‘100 Jahre BGB: Erbe und Aufgabe’, [1996] Neue Juristische Wochenschrift 1697 ff.; Reiner Schulze, ‘Ein Jahrhundert BGB – deutsche Rechtseinheit und europäisches Privatrecht’, [1997] Deutsche Richterzeitung 369 ff.; Norbert Horn, ‘Ein Jahrhundert Bürgerliches Gesetzbuch’, [2000] Neue Juristische Wochenschrift 40 ff.

154 For example, the symposium ‘Das Bürgerliche Gesetzbuch und seine Richter’, the contributions to which have been published in the volume edited by Falk and Mohnhaupt (n. 63). The centenaries of the BGB and the Staudinger commentary were celebrated at a symposium in Munich in June 1998; on which see the volume edited by Martinek and Sellier (n. 43). The papers presented at the Salzburg conference of the Association of Teachers of Private Law in September 1999 also dealt with the application and further development of the BGB over the last one hundred years; see (2000) 200 Archiv für die civilistische Praxis 273 ff. The Association of Young Academics in Private Law had already held a conference on the BGB in 1996; its proceedings are documented in the Jahrbuch Junger Zivilrechtswissenschaftler (1996).

155 Hans Schlosser and Volker Behr (eds.), Bürgerliches Gesetzbuch 1896 – 1996 (1997).

156 No less than three Festschriften appeared on this occasion: 50 Jahre Bundesgerichtshof: Festgabe aus der Wissenschaft (four volumes) (2000); 50 Jahre Bundesgerichtshof: Festschrift aus Anlaß des fünfzigjährigen Bestehens von Bundesgerichtshof, Bundesanwaltschaft und Rechtsanwaltschaft beim Bundesgerichtshof (2000); Fortitudo Temperantia, Die Rechtsanwälte am Reichsgericht und beim Bundesgerichtshof: Festgabe zu 50 Jahren Bundesgerichtshof (2000).

157 Maitland (n. 50) 484. On the evaluation of the BGB from the point of view of French and English law, see Werner Schubert, ‘Das Bürgerliche Gesetzbuch im Urteil französischer Juristen bis zum Ersten Weltkrieg’, (1997) 114 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 128 ff.; Marcus Dittmann, Das Bürgerliche Gesetzbuch aus Sicht des Common Law (2001).

158 For an overview, see Wieacker (n. 4) 383 ff.; Zweigert and Kötz (n. 8) 154 ff. And see the contributions in (2000) 200 Archiv für die civilistische Praxis 365 ff., 493 ff.

159 Supra n. 141.

160 Cf., for example, BGHZ 26, 349 ff. (gentleman horse-rider); BGHZ 35, 363 ff. (ginseng roots).

161 See Kleindiek (n. 84) 314 ff., 340 ff.

162 See, from a comparative perspective, Zweigert and Kötz (n. 8) 630 ff.; Markesinis and Unberath (n. 141) 701 ff.

163 For more details on these attempts at reform, see Hermann Lange, Schadensersatz, 2nd edn. (1990), 19 ff.; Gottfried Schiemann, in J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 13th edn. (1998), preliminary notes to §§ 249 ff., nn. 26 ff.

164 See the references in Alfred Wolf, ‘Weiterentwicklung und Überarbeitung des Schuldrechts’, [1978] Zeitschrift für Rechtspolitik 249.

165 Wolf, [1978] Zeitschrift für Rechtspolitik 253 ff.

166 Gutachten und Vorschläge zur Überarbeitung des Schuldrechts, vol. I (1981); vol. II (1981); vol. III (1983).

167 In particular: recent developments of the law of contract in Europe (Max Planck Institute, Hamburg), extinctive prescription (Frank Peters and Reinhard Zimmermann), law of damages (Gerhard Hohloch), pre-contractual liability (Dieter Medicus), long-term contracts (Norbert Horn), breach of contract (Ulrich Huber), contracts of sale (Ulrich Huber), contracts concerning residence and care in homes for senior citizens (Gerhard Igl), contracts for medical treatment (Erwin Deutsch, Michael Geiger), contracts for work (Hans-Leo Weyers), contracts to take care of a matter for somebody against valuable consideration (Hans-Joachim Musielak), giro account relationships (Franz Häuser), law of negotiable instruments (Ingo Koller), unjustified enrichment (Detlef König), contractual and extra-contractual liability (Peter Schlechtriem), law of delict (Christian von Bar), strict liability (Hein Kötz), consumer protection (Harm Peter Westermann), contracts for the provision of energy (Volker Emmerich), contracts of employment (Manfred Lieb), building contracts (Kurt Keilholz), negotiorum gestio ( Johann Georg Helm), partnership (Karsten Schmidt), suretyship and guarantee (Walther Hadding, Frank Häuser, and Reinhard Welter). In addition, in 1986 and on behalf of the Hamburg Max Planck Institute, Jürgen Basedow submitted a comparative report on the development of the law of sale: Jürgen Basedow, Die Reform des deutschen Kaufrechts (1988).

168 This was also pointed out by Dieter Medicus, ‘Zum Stand der Überarbeitung des Schuldrechts’, (1988) 188 Archiv für die civilistische Praxis 169 (‘striking’).

169 See, for example, the contributions in (1982) 37 Neue Juristische Wochenschrift 2017 ff. (by Jürgen Schmude, Helmut Heinrichs, Wolfgang B. Schünemann, Manfred Lieb, Ulrich Hübner and Johannes Denck), and the bibliography included in Wolfgang Ernst and Reinhard Zimmermann (eds.), Zivilrechtswissenschaft und Schuldrechtsreform (2001), as appendix II A.

170 The papers (by Manfred Lieb, Eduard Picker, Max Vollkommer, Hans G. Leser and Klaus J. Hopt) were published in (1983) 183 Archiv für die civilistische Praxis 327 ff.

171 Manfred Lieb, ‘Grundfragen einer Schuldrechtsreform’, (1983) 183 Archiv für die civilistische Praxis 327 ff.

172 Gerhard Hönn, ‘Diskussionsbericht’, (1983) 183 Archiv für die civilistische Praxis 366.

173 See Hans A. Engelhard, ‘Zu den Aufgaben einer Kommission für die Überarbeitung des Schuldrechts’, [1984] Neue Juristische Wochenschrift 1201 ff.

174 For details, see Bundesminister der Justiz (ed.), Abschlußbericht der Kommission zur Überarbeitung des Schuldrechts (1992) 13 ff.

175 Hans A. Engelhard, [1984] Neue Juristische Wochenschrift 1201.

176 Abschlußbericht (n. 174). On the working methods of the Commission, cf. also Medicus, (1988) 188 Archiv für die civilistische Praxis 168 ff. And see the contributions of Walter Rolland, Dieter Medicus, Lothar Haas and Dieter Rabe to [1992] Neue Juristische Wochenschrift 2377 ff.

177 The UN Convention on the International Sale of Goods of 11 April 1980 only entered into force in Germany on 1 January 1991.

178 The reporters were Hein Kötz, Peter Joussen and Gerd Brüggemeier.

179 See, in particular, the contribution by Werner Flume in Verhandlungen des 60. Deutschen Juristentages, vol. II/2 (1994), K 112 ff. In a similar vein, in the run-up to the conference, cf. also Wolfgang Ernst, ‘Zum Kommissionsentwurf für eine Schuldrechtsreform’, [1994] Neue Juristische Wochenschrift 2177 ff.; idem, ‘Kernfragen der Schuldrechtsreform’, [1994] Juristenzeitung 801 ff.

180 ’60. Deutscher Juristentag: Der Tagungsverlauf ‘, [1994] Neue Juristische Wochenschrift 3070.

181 ‘Tagungsbericht: Der 60. Deutsche Juristentag in Münster’, [1995] Juristenzeitung 190.

182 ‘Die Reform des Schuldrechts – Die privatrechtliche Abteilung des 60. Deutschen Juristentags, 20 – 23. September 1994 in Münster’, (1995) 3 Zeitschrift für Europäisches Privatrecht 303.

183 These votes are documented in Verhandlungen II/1 (n. 152) K 103 ff.

184 This has repeatedly been criticized. See, for example, Harm Peter Westermann, [1994] Monatsschrift für Deutsches Recht 1. But see the discussion on the occasion of the 24th congress of German notaries, based on papers presented by Günther Brambring and Hermann Amann, as well as the literature listed in Ernst and Zimmermann (n. 169) appendix II B.

185 The text of the draft rules is easily accessible in Ernst and Zimmermann (n. 169) appendix I; the draft rules plus motivation can be found in Claus-Wilhelm Canaris (ed.), Schuldrechtsmodernisierung 2002 (2002), 3 ff.

186 See Wolfgang Ernst and Beate Gsell, ‘Kaufrechtsrichtlinie und BGB: Gesetzentwurf für eine “kleine” Lösung bei der Umsetzung der EU-Kaufrechtsrichtlinie’, [2000] Zeitschrift für Wirtschaftsrecht 1410 ff.; cf. also Wolfgang Ernst and Beate Gsell, ‘Nochmals für eine “kleine” Lösung’, [2000] Zeitschrift für Wirtschaftsrecht 1812 ff.; Andreas Schwartze, ‘Die zukünftige Sachmängelgewährleistung in Europa – Die Verbrauchsgüterkauf-Richtlinie vor ihrer Umsetzung’, (2000) 8 Zeitschrift für Europäisches Privatrecht 544 ff.

187 Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, Parts I and II (2000); Ole Lando, Eric Clive, André Prüm and Reinhard Zimmermann (eds.), Principles of European Contract Law, Part III (2003); UNIDROIT (ed.), Principles of International Commercial Contracts (1994). For the literature that had appeared, by 2000, on these instruments, see appendix II D in Ernst and Zimmermann (n. 169).

188 In particular: Ulrich Huber, Leistungsstörungen, 2 vols. (1999).

189 The contributions to this symposium have been published in Ernst and Zimmermann (n. 169). Another symposium was held in January 2001: Reiner Schulze and Hans Schulte-Nölke (eds.), Die Schuldrechtsreform vor dem Hintergrund des Gemeinschaftsrechts (2001). On 30/31 March 2001 the Association of German Teachers of Private Law held a special meeting in Berlin to discuss what had by then become the revised version of the Discussion Draft. The lectures delivered at that meeting have been published in a special issue of Juristenzeitung: [2001] Juristenzeitung 473 ff. The revised version of the Discussion Draft (known as Konsolidierte Fassung des Diskussionsentwurfs eines Schuldrechtsmodernisierungsgesetzes) can be found in Canaris (n. 185) 349 ff.

190 Kommission Leistungsstörungen. The names of the members are listed in Claus-Wilhelm Canaris, ‘Die Reform des Rechts der Leistungsstörungen’, [2001] Juristenzeitung 499.

191 For details, see Canaris (n. 185) x.

192 ‘Entwurf eines Gesetzes zur Modernisierung des Schuldrechts’, easily accessible in Canaris (n. 185) 429 ff., 569 ff.

193 Thus, for example, the Council of State Governments submitted proposals for 150 amendments, of which the Government accepted about 100; see ‘Stellungnahme des Bundesrates (31 August 2001)’ and ‘Gegenäußerung der Bundesregierung zur Stellungnahme des Bundesrats zum Entwurf eines Gesetzes zur Modernisierung des Schuldrechts’, both now easily accessible in Canaris (n. 185) 935 ff., 995 ff.

194 For an attempt to take stock, see Barbara Dauner-Lieb, ‘Das Schuldrechtsmodernisierungsgesetz in Wissenschaft und Praxis – Versuch einer Bestandsaufnahme’, in Barbara Dauner-Lieb, Horst Konzen and Karsten Schmidt (eds.), Das neue Schuldrecht in der Praxis (2003), 3 ff. For a (largely unfavourable) assessment from the point of view of a foreign observer, see Ole Lando, ‘Das neue Schuldrecht des Bürgerlichen Gesetzbuchs und die Grundregeln des europäischen Vertragsrechts’, (2003) 67 Rabels Zeitschrift für ausländisches und internationales Privatrecht 231 ff.

195 For an overview, see Nils Jansen, Binnenmarkt, Privatrecht und europäische Identität (2004); Reinhard Zimmermann, ‘Comparative Law and the Europeanization of Private Law’, in Mathias Reimann and Reinhard Zimmermann (eds.), Oxford Handbook of Comparative Law (in preparation).

196 Peter-Christian Müller-Graff, ‘EC Directives as a Means of Unification of Private Law’, in Arthur Hartkamp et al. (eds.), Towards a European Civil Code, 3rd edn. (2004), 77 ff.

197 These, and the other Directives in the field of private law, can conveniently be found in Oliver Radley-Gardner, Hugh Beale, Reinhard Zimmermann and Reiner Schulze (eds.), Fundamental Texts on European Private Law (2003), sub I.

198 Claus-Wilhelm Canaris, ‘Die richtlinienkonforme Auslegung und Rechtsfortbildung im System der juristischen Methodenlehre’, in Im Dienst der Gerechtigkeit: Festschrift für Franz Bydlinski (2002), 47 ff.

199 Walter van Gerven, ‘The ECJ Case-law as a Means of Private Law Unification’, in Hartkamp et al. (n. 196) 101 ff.; for the law of delict, see Wolfgang Wurmnest, Grundzüge eines europäischen Haftungsrechts: Eine rechtsvergleichende Untersuchung des Gemeinschaftsrechts (2003), 13 ff.

200 Wolfgang Wurmnest, ‘Common Core, Grundregeln, Kodifikationsentwürfe, Acquis-Grundsätze – Ansätze internationaler Wissenschaftlergruppen zur Privatrechtsvereinheitlichung in Europa’, (2003) 11 Zeitschrift für Europäisches Privatrecht 714 ff.

201 Mauro Bussani and Ugo Mattei (eds.), The Common Core of European Private Law (2002).

202 On which, see Winfried Tilmann, ‘Entschließung des Europäischen Parlaments über die Angleichung des Privatrechts der Mitgliedstaaten vom 26.05.1989’, (1993) 1 Zeitschrift für Europäisches Privatrecht 613 ff.

203 COM (2003) 68, OJ 2003, C 63/1.

204 See, most recently, the ‘Communication from the Commission to the European Parliament and the Council on “European Contract Law and the revision of the acquis: the way forward” ‘, COM (2004) 651 final. The parameters for the academic discussion are analysed by Stephen Weatherill, ‘Why Object to the Harmonization of Private Law by the EC?’, (2004) 12 European Review of Private Law 633 ff.

205 Lando and Beale (n. 187) and Lando, Clive, Prüm and Zimmermann (n. 187), both quoted above. For comment, see Reinhard Zimmermann, ‘The Principles of European Contract Law: Contemporary Manifestation of the Old, and Possible Foundation for a New, European Scholarship of Private Law’, in Essays in Honour of Hein Kötz (2005), forthcoming.

206 Ewoud Hondius, ‘Towards a European Civil Code’, in Hartkamp et al. (n. 196) 3 ff.

207 Giuseppe Gandolfi (coordinateur), Code Européen des Contrats: Avant-projet (2000); Christian von Bar, ‘The Study Group on a European Civil Code’, in Festschrift für Dieter Henrich (2000) 1 ff.

208 Michael Faure, Jan Smits and Hildegard Schneider (eds.), Towards a European Ius Commune in Legal Education and Research (2002).

209 Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science’, (1996) 112 Law Quarterly Review 576 ff.

210 Vernon Valentine Palmer (ed.), Mixed Jurisdictions Worldwide: The Third Legal Family (2001); Jan Smits, The Making of European Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System (2002); Reinhard Zimmermann, Daniel Visser and Kenneth Reid (eds.), Mixed Legal Systems in Comparative Perspective (2004).

211 Reinhard Zimmermann and Kurt Siehr (eds.), ‘The Convention on the International Sale of Goods and its Application in Comparative Perspective’, (2004) 68 Rabels Zeitschrift für ausländisches und internationales Privatrecht 113 ff.

212 Helmut Coing, Europäisches Privatrecht, vol. I (1985); vol. II (1989); Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990).

213 Hein Kötz, Europäisches Vertragsrecht, vol. I (1996) (English translation under the title European Contract Law by Tony Weir, 1997); volume II, to be written by Axel Flessner, has not yet been published.

214 Christian von Bar, Gemeineuropäisches Deliktsrecht, vol. I (1996); vol. II (1999) (English translation under the title The Common European Law of Torts, vol. I (1998); vol. II (2000)); Peter Schlechtriem, Restitution und Bereicherungsausgleich in Europa: Eine rechtsvergleichende Darstellung, vol. I (2000); vol. II (2001); cf. also Reinhard Zimmermann (ed.), Grundstrukturen des Europäischen Deliktsrechts (2003); idem (ed.), Grundstrukturen eines Europäischen Bereicherungsrechts (2005).

215 Hugh Beale, Arthur Hartkamp, Hein Kötz and Denis Tallon (general eds.), Cases, Materials and Text on Contract Law (2002); Walter van Gerven, Jeremy Lever and Pierre Larouche, Cases, Materials and Text on National, Supranational and International Tort Law (2000); Jack Beatson and Eltjo Schrage (eds.), Cases, Materials and Texts on Unjustified Enrichment (2003); cf. also Filippo Ranieri, Europäisches Obligationenrecht, 2nd edn. (2003).

216 Zeitschrift für Europäisches Privatrecht, European Review of Private Law, Europa e diritto privato.

217 Radley-Gardner, Beale, Zimmermann and Schulze (n. 197).

218 See, as far as the judiciary is concerned, Walter Odersky, ‘Harmonisierende Auslegung und europäische Rechtskultur’, (1994) 2 Zeitschrift für Europäisches Privatrecht 1 ff.; and see Zimmermann (n. 205) sub V.

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