History[edit | edit source]
German Empire[edit | edit source]
The example of the French codification (see Napoleonic code, code civil) of 1804 created in Germany too the desire for obtaining a civil code (despite the opposition of the Historical School of Law of Friedrich Carl von Savigny), which would systematize and unify the various, heterogeneous laws that were in effect in the country. However, the realization of such an attempt during the life of the German Confederation was difficult, for the appropriate legislative body did not exist.
However, in 1871, the various German states were united into the German Empire. In the beginning, civil law legislative power was held by the individual states, not the Empire ("Reich") that comprised those states. An amendment to the constitution passed in 1873 (called "Lex Miquel-Lasker" - referring to the amendment's sponsors, representatives Johannes von Miquel and Eduard Lasker) transferred this legislative authority to the Reich. Various committees were then formed to draft a bill that was to become a civil law codification for the entire country, replacing the civil law systems of the states.
A first draft code, in 1888, was not accepted favorably. A second committee of 22 members, comprising jurists, but also representatives of financial interests as well as of various ideological currents of the time, compiled a second draft. So, after decades of work, which included contributions from many of the most highly-reputed lawyers of the time and benefited greatly from the work previously done on other codifications such as the French Code Civil, the BGB was passed by the Reich legislature in 1896. It was put into effect on January 1, 1900 and has been the central codification of Germany's civil law ever since.
Nazi Germany[edit | edit source]
In Nazi Germany, there were plans to replace the BGB with a new codification that was planned to be entitled "Volksgesetzbuch" ("people's code"), which was meant to reflect Nazi ideology better than the liberal spirit of the BGB, but those plans did not become reality. Anyhow, some general principles of the BGB such as the principle of bona fides (§ 242 BGB, "Treu und Glauben") were used to insert national-socialist thinking into the BGB.
Germany since 1945[edit | edit source]
When Germany was divided into a democratic capitalist state in the West and a socialist state in the East after World War II, the BGB continued to regulate the civil law in both parts of Germany. Step by step, however, the BGB regulations were replaced in East Germany by new laws, beginning with a family code in 1966 and ending with a civil code in 1976 and a contract act in 1982. Since Germany's reunification in 1990, the BGB has again been the codification encompassing the civil law of entire Germany.
The BGB has been amended many times since it came into existence. The most important changes took place in 2002, when the law of obligations, one of the BGB's five main parts, was largely reformed. Besides, the way the courts construe and interpret the regulations of the code have changed in many ways, and continue to evolve and develop. This is particularly due to the high degree of abstraction throughout the code. In recent years lawmakers have tried to bring legislation on certain matters "back into the BGB" which had been ruled in separate acts. For example legislation on renting flats which had been transferred to separate laws like the "Miethöhengesetz" is now once again ruled in the BGB.
The BGB is the centerpiece of the German Civil Law System. Other legislation rely on the principles set out in the BGB. Therefore in the German Commercial Code there are only the special rules for merchant partnerships and limited partnerships as the general rules for partnerships in the BGB also apply.
The system of the BGB is a typical concept of the 19th century and has met right from the start many criticism for its lack of social responsibility. Lawmakers and legal practice have improved the system over the years to adapt the BGB in this respect with more or less success. Recently the influence of EU legislation is quite strong and the BGB has seen many changes due to this.
Structure[edit | edit source]
The BGB contains five main parts ("books"):
- the General Part ("Allgemeiner Teil"), sections 1 through 240, comprising regulations that have effect on all the other four parts
- the Law of Obligations ("Recht der Schuldverhältnisse"), sections 241 through 853, describing the various forms of contracts and other obligations between persons, including tort law
- the Property Law ("Sachenrecht"), sections 854 through 1296, describing possession, property, other rights persons have relating to property, and how those rights can be transferred
- the Family Law ("Familienrecht"), sections 1297 through 1921, describing marriage and other legal relationships among family members
- the Law of Legacies ("Erbrecht"), ruling what happens to the fortune of deceased persons.
The Principle of Abstraction[edit | edit source]
One particularly important and distinguishing element in the system of the BGB is the principle of abstraction (in German legal terminology “Abstraktionsprinzip”, although the word does not appear anywhere in the statute itself), which dominates the entire code and is vital for the understanding of how the BGB treats legal transactions, such as contracts. One example to clarify this: In the system of the BGB, ownership is not transferred by a contract of sale, as in most other jurisdictions. Instead, a contract of sale merely obliges the seller to transfer ownership of the good sold to the buyer, while the buyer is obliged to pay the stipulated price. The buyer does not automatically gain ownership by virtue of the contract of sale whereas the seller has not automatically gained ownership of the money. Section 433 of the BGB explicitly states this obligation of the seller, as well as the buyer's obligation to pay the negotiated price. So, seller and buyer have just gained reciprocal claims. For transfer of ownership, another contract is necessary which is governed by sections 929 et seq. Thus, in a simple purchase of goods paid immediately in cash, German civil law interprets the transaction as (at least) three contracts: the contract of sale itself, obliging the seller to transfer ownership of the product to the buyer and the buyer to pay the price; a contract that transfers ownership of the product to the buyer, fulfilling the seller’s obligation; and a contract that transfers ownership of the money (bills and coins) from the buyer to the seller, fulfilling the buyer’s obligation.
This doesn't mean that contracts in Germany are more complicated to the people involved. Especially the contracts of everyday life don't differ from those in other countries in their outer appearance. For instance, if someone buys a newspaper at a newsstand without saying one single word to the seller, all the three contracts which are mentioned above are fulfilled by conclusive demeanor.
Although the principle of abstraction is not to be found in jurisdictions outside the German one and contradicts the usual common sense interpretation of commercial transactions, it is undisputed among the German legal community. The main advantage of the principle of abstraction is its ability to provide a secure legal construction to nearly any financial transaction however complicated this transaction may be. A good example is the well known retention of title. If someone buys something and pays the purchase price by installments the system faces two conflicting interests: the buyer wants to have the purchased goods immediately, whereas the vendor wants to secure full payment of the purchase price. With the principle of abstraction the BGB has a simple answer to that: the purchase contract obliges the buyer to pay the full price and requires the vendor to transfer property upon receipt of the last installment. As the obligations and the actual conveyance of ownership are in two different contracts it is quite simple to secure both parties' interests. The vendor keeps the rights to the property up to the last payment and the buyer is the mere holder of the purchased goods. If he fails to pay in full the vendor may reclaim his property just like any other owner.
Miscellaneous[edit | edit source]
- No German law has a higher number of sections: The BGB ends with § 2385.
- § 923 (1) BGB is a perfect hexameter:
Steht auf der Grenze ein Baum, so gebühren die Früchte und, wenn der Baum gefällt wird, auch der Baum den Nachbarn zu gleichen Teilen (If a tree stands on the border between two plots of land, the neighbours have equal right to the fruit thereof and also to the tree, in case it is cut down).
- § 923 (3) BGB rhymes:
Diese Vorschriften gelten auch | für einen auf der Grenze stehenden Strauch (The foregoing provisions are also valid for bushes standing on the border).
[edit | edit source]
- Full text in english
- Original German BGB (German) from the German Ministry of Justice
- Search the BGB (German)
- Zivilrechtsseite des Bundesjustizministeriums
- Commentary on the BGB (German)
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