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 #p#分页标题#e#
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 #p#分页标题#e#

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 #p#分页标题#e#