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. #p#分页标题#e#
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 #p#分页标题#e#
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. #p#分页标题#e#
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