Bürgerliches Gesetzbuch


Bürgerliches Gesetzbuch

The Bürgerliches Gesetzbuch (or BGB) is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project.

The BGB served as a template for the regulations of several other civil law jurisdictions, including Portugal, the Republic of China, Japan, Thailand, South Korea, People's Republic of China, Greece and Ukraine.

Contents

History

German Empire

Publication in the Reich Law Gazette on August 24, 1896

The introduction in France of the Napoleonic code in 1804 created in Germany a similar 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, did not meet with favour. A second committee of 22 members, comprising not only jurists but also representatives of financial interests and of the various ideological currents of the time, compiled a second draft. After significant revisions, the BGB was passed by the Reichstag 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

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. However, some general principles of the BGB such as the principle of bona fides (§ 242 BGB, "Grundsatz von Treu und Glauben") were used to interpret the BGB in a Nazi-friendly way.

Germany since 1945

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 new civil code (Zivilgesetzbuch) 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.

In western and reunited 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. 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 continues to be the centerpiece of the German Civil Law System. Other legislation relies 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 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

The BGB follows a modified pandectist structure, derived from Roman law: like other Roman-influenced codes, it regulates the law of persons, property, family and inheritance, but unlike e.g. the French Code civil or the Austrian Civil Code, a chapter containing generally applicable regulations is placed first. Consequently, 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, such as the regulation on persons, the capacity to form contracts, declaration of intent, rescission due to mistake, formation of contracts, limitation of actions and agency
  • 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 (movable property and real estate), 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 Succession ("Erbrecht"), providing regulation for what happens to the belongings of deceased persons, including a Law of Wills.

The Principle of Abstraction

One particularly important and distinguishing element in the system of the BGB is the principle of abstraction (in German : “Abstraktionsprinzip”), and accompanying it, the principle of separation “Trennungsprinzip”). Derived from the works of the pandectist scholar Friedrich Carl von Savigny, the code strongly differentiates between obligatory contracts as regulated by the second book of the BGB on obligations, and contracts on the actual transfer of property, particularly as they are regulated by the third book of the BGB on property. In short, the two principles state: having an obligation to transfer of ownership does not make you the owner, but merely gives you the right to demand the transfer of ownership.

The principle of separation states that contracts on the transfer of property and the actual transfer of property must be treated separately and follow their own rules. Also, the principle of abstraction states that the transfer of ownership is legally valid without regard for the legal validity of the obligatory contract. From this differentiation it follows that a mere obligatory sales contract does not transfer ownership, if and until the contract on actual delivery of the contract is not formed; conversely, the transfer of property following an invalid obligatory contract may give rise to an obligation of the transferee to restitute the property (compare unjust enrichment), but until the property is retransferred, again by a separate contract on actual delivery , the property of the transferee is not affected.

A sales contract alone for example would under the BGB not lead to ownership on the side of the buyer, but merely give rise to an obligation by the seller to transfer ownership of the good in question. The seller is then, by obligatory contract, obliged to form another, and separate, contract on transferring the property. Only once this contract is formed, the buyer acquires ownership of the purchased good. Consequently, these two procedures are regulated differently: the obligations of the parties are regulated in sec. 433, the contract on actual transfer of ownership on a movable good on sec. 929. The payment of the purchase price (the transfer of ownership on the money) is treated likewise.

In day-to-day business, this differentiation is not needed, because both types of contract would be formed simultaneously by exchanging the good for the price. Although the principle of abstraction can be seen as overly technical to be contradicting 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.

Another advantage is that in the case of a defective treaty of sale the ownership remains effective and a resale is not involved. By the rules of unjust enrichment the buyer is obliged to retransfer the ownership if possible or otherwise pay compensation.

Trivia

  • No German law has a larger number of sections: The BGB ends with sec. 2385.
  • Sec. 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 rights to the fruit thereof and, if it is cut down, also to the tree).

  • Sec. 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).
  • Although several other laws are meant to deal with some specific legal questions which are deemed to be outside the scope of a general civil code, the highly specialised Bienenrecht (law of bees) is found within the property law chapter of the BGB (sections 961 - 964). This results from the fact that in legal terms in Germany bees become wild animals as soon as they leave their hive. As wild animals can't be owned by anyone, the said sections provide for the former owner to keep his claim over that swarm. But sec. 961-964 are usually described as the least important regulations in German law, with not a single decision of any higher court reported since the BGB entered into force.

See also

Notes

External links


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