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. #p#分页标题#e#

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 #p#分页标题#e#
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.