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Copyright (c) 1999 The Parker School of Foreign and Comparative Law,
Columbia University
Columbia Journal of European Law
Fall, 1999
5 Colum. J. Eur. L. 461
LENGTH: 8541 words
ARTICLE: A CENTURY OF THE BURGERLICHES GESETZBUCH: GERMAN LEGAL UNIFORMITY AND
EUROPEAN PRIVATE LAW*
* This contribution is based partly on a lecture presented at a symposium at the University of Ferrara in September 1996
on the centenary of the BGB, as well as an article by the author published in German in the Deutsche Richter Zeitung, DRiZ
369 (1997).
NAME: Reiner Schulze**
BIO:
** Judge of the Higher regional Court (Oberlandesgericht) Hamm, Director of the Institute of International Business Law
and the Institute of Legal History, University of Munster.
LEXISNEXIS SUMMARY:
... In some European countries, the terms "internationalization" and "Europeanization" are used to describe
new tendencies in their private law. The discussion about these tendencies has coincided with the centenary
of the most important German legal code in private law, the Burgerliches Gesetzbuch (BGB). ... The BGB
also strongly reflected the need for and pursuit of uniform private law to regulate a common market among
the German states, the contours of which had developed long before the founding of Bismarck's Reich. ...
The creation of a common European Code of private law would appear to correspond to the conditions of the
common market and the recently established Economic and Monetary Union. ... But despite first
impressions, that which formerly served the harmonization of national private law need not necessarily be
appropriate for the European private law of our era. ... This co-existence of a fragmented supranational and
national law defies ideas of a comprehensive and autonomous legal system which the legislature has striven
to achieve since the 18th century and has had an influence on the contours of national private law. ... As far
as possible, the interpretations and thereby the experiences of other jurisdictions should be considered and
included in the application of the corresponding rule in national private law. ...
TEXT:
[*461] In some European countries, the terms "internationalization" and "Europeanization" are used to
describe new tendencies in their private law. The discussion about these tendencies has coincided with the
centenary of the most important German legal code in private law, the Burgerliches Gesetzbuch (BGB). This
coincidence justifies consideration of the role of a traditional national code such as the BGB in light of the
changes in private law which are associated with "internationalization" and "Europeanization." In particular,
one has to consider how this Europeanization is conceived in private law (I) and how this conception affects
the perception of the German BGB (II). Furthermore, the development of Regulations, Directives and
Decisions of the European Union in areas of private law provokes the question whether a supranational legal
Page 1
code enacted by the EU should replace the BGB and the other national codes, thereby establishing a
uniform private law in the 15 Member States of the Union (III). If this should not happen in the near future,
European lawyers--and foreign lawyers dealing with private law in Europe--have to consider the existence of
a new kind of pluralism within private law containing national, international and supranational law (IV).
Particularly the consequences concerning the legislature, jurisprudence and legal education have to be
discussed (V).
I. NATIONAL LEGAL UNIFORMITY AND INTERNATIONAL LEGAL RAPPROCHEMENT
The desire for national legal uniformity in the body of private law in Germany was fulfilled one hundred
years ago with the enactment of the BGB. After the promulgation
n1
of the new national code in 1896,
lawyers of the German Reich had more than three years to adapt to their future common code before it came
into force at the beginning of the new century on January 1, 1900.
n2
The BGB is divided into five parts. Its
first part contains the general rules of private law--for example, the concept of legal transactions (including
the rules of mistake); the law of obligations in its second part (e.g. contract, tort and unjust enrichment); the
law of real property and related subjects in its third part; family law in part four; and the law of succession in
part five. The new [*462] code was a symbol of the consolidation of the nation-state and national unity.
Equally, it was an expression and confirmation of a process which had begun long before the founding of the
Reich in 1871: the emergence of a common jurisprudence and the convergence of the standards of legal
profession in the different German states.
n3
The BGB also strongly reflected the need for and pursuit of
uniform private law to regulate a common market among the German states, the contours of which had
developed long before the founding of Bismarck's Reich. The common market started to take shape in
particular through the Customs Union (Zollverein) of 1834
n4
and parallel commercial legislation in the
German Federation (Deutscher Bund).
n5
Today the common market extends across Europe. The German BGB now applies to only one segment
of the market, and other segments are subject to other legal orders, e.g. the French Code civil, the Italian
Codice civile and the English common law.
n6
From the perspective of the common market, national law
may appear particularistic, that is, pertaining only to a limited part of a unit, as was formerly the case with the
Prussian code of law (Preussisches Allgemeines Landrecht), the Bavarian Codex Maximilianeus or the
Baden State Law
n7
in the Customs Union and in the German Reich before the enactment of the BGB.
n8
European law today operates to a large extent [*463] alongside these particularistic laws in different forms:
as Community law,
n9
as international uniform law
n10
and as common legal principles
n11
of the European
states. Insofar as private law is concerned, the emergence of a European private law in the sense of these
three forms is not a far-fetched vision but a fitting characterization of present developments.
n12
Of these three forms of European Law, Community law has most clearly qualified national legal systems.
In many areas a network of national and supranational law has emerged. The lawyers of each country of the
European Union simultaneously serve two legal systems which are linked but not entirely in tune with one
another. Community Directives lead to a legal rapprochement even in the core areas of private law, from
product liability to the control of standard-form contracts.
n13
To a growing extent, practitioners and
academics are additionally concerned with uniform law--the second form mentioned--which numerous
European countries have adopted by virtue of international agreements. For example, the European concept
of "Civil and Commercial Matters" has emerged from Section 1 of the European Convention on Jurisdiction
and the Enforcement of Judgements,
n14
which is interpreted by the European Court of Justice irrespective
of the definitions used by individual national legal systems.
n15
In particular, the uniform law on international
sales
n16
which applies in a [*464] large part of Europe and also extends far beyond Europe
n17
has
attained an influential position in the German courts for a classical core area of private law alongside the
BGB law on sales.
n18
In relation to common legal principles--the third form--the European Court of Justice
has formulated a wealth of general principles of law based mainly on "common constitutional traditions"
n19
in the Member States of the European Union.
n20
Furthermore, the EC Treaty provides in Article 215 that
"general legal principles which are common to the legal systems of the Member States" are to be applied in
cases of public liability.
n21
The question has arisen whether there is similar common ground for national contract and tort law, and
other private law areas beyond Community law. It is argued that by comparing the various national codes
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and case law, common principles are recognizable in private law despite the numerous differences in
legislation and jurisprudence.
n22
Conclusions on these points in relation to contract law have been
presented by the UNIDROIT Institute
n23
in Rome for example and by the Commission for European
Contract Law lead by Ole Lando.
n24
All of this assists Europe--within the geographic borders of the Union and beyond--in developing as a
legal community with respect to private law. The overall picture of private law in Europe is changing. Several
facets of this change will be considered below in relation to the position of national private laws and their
codification in the centenary of the BGB.
II. THE BGB--A EUROPEAN LEGAL CODE
It is questionable whether the BGB should still be seen as a national codification in the sense sought and
acknowledged in its preparation and enactment. The political and [*465] constitutional order has obviously
changed since then. The BGB was enacted as a "Burgerliches Gesetzbuch fur das Deutsche Reich," (Civil
Code for the German Reich),
n25
an autonomous national state in a period when the European Union was
not even imaginable. Today however, it is merely the civil code of a Member State of the European Union.
This Member State has set as its goal "the realization of a united Europe" pursuant to the new Article 23 of
its constitution (Grundgesetz). Several provisions of the BGB are now based on the law of the European
Community.
n26
To this extent the decisions of the European Court of Justice are by reason of Article 234
paragraphs 2 and 3 (formerly Article 177 paragraphs 2 and 3) of the EC Treaty decisive for the application of
the BGB.
Not only the position of the code in the national and international legal system has changed. On a deeper
level, the understanding of this law has become detached from one of its historical roots--the ideal of the
national state. The national legal character of the BGB was emphasized for example, in 1896 by its signing
by the Kaiser on the anniversary of the battle of Gravelotte as a patriotic day of commemoration as well as
by a decorative page in the German lawyers' journal, when the code came into force in the year 1900,
entitled "One People, One Reich, One Law."
n27
By way of contrast, the French Code civil appeared as
foreign law.
n28
Although it had been in force in Western Germany for almost a century, generations of
German lawyers had worked with it and the highest courts in Prussia and Germany had decided cases by
applying it.
n29
The nineteenth century effort to create a particularly German code of law contrasts with
current legal historical research which places German private law in the context of European development
since the Middle Ages. This school of thought sees in the development of German private law "a special
case" of European private law history "which in all important phases can only be explained in a European
context."
n30
From this point of view, the BGB and other 19th century codifications are to be regarded far
more as a result and integral part of European legal culture than was apparent to those who, influenced by
nationalist thinking, created and paved its way.
n31
In as much as these legal codes are characterized by
specific national circumstances as well as by common features of European private law, they are
simultaneously German, French or Spanish law and particularistic European law.
[*466] German private law has recently developed within the confines of Europe and is continuing to do
so. The BGB or the Pandect doctrines upon which it is based served other countries as a pattern for their
civil codes at the turn of the century and later on.
n32
In recent years, German private law has, together with
other western laws, stimulated the reconstruction of private law in Eastern Europe
n33
--a further expression
of the structural similarity and compatibility of these legal regimes. Terms such as "leasing," "factoring," and
"franchising" which have found their way into the German legal terminology, show linguistically the transfer of
legal concepts across national borders.
In varied ways, history and current developments embed the private law of Germany in the context of
European legal culture.
n34
From this point of view the BGB appears as a part of a European development
of private law, both as contributor to these developments and as their product. Part of this development is
German national and at the same time particularistic European law. The German lawyers of the last century
familiarized themselves with the idea that their Prussian law or their Bavarian Codex Maximilianeus, was
both: i.e. particularistic Prussian or Bavarian law and German law--and not just after 1871 but long before the
founding of the national state. Today's Europe presents lawyers with a challenge which perhaps is similar in
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some respects. The law of Germany, France and other states has to be understood and applied as a law
specific to these countries and at the same time as part of a wider, European legal community. But in many
respects this challenge seems to be much greater and more difficult, for example, from a linguistic point of
view. In Germany there was one common language, whereas within the EU, there are eleven official
languages (and still more languages in use in several regions).
III. A NEW CODIFICATION OF PRIVATE LAW BY MEANS OF THE EUROPEAN UNION?
The emergence of a European private law and the change in the perception of national civil legal codes
seems to suggest that we repeat today on a European level that which occurred in the German national state
in 1896. In two resolutions the European Parliament has already called for preparations for a codification.
n35 A codification of European private law could achieve legal uniformity in the European market--either as a
whole or at least in sole regard to international legal transactions.
n36
As a Community [*467] Regulation it
would replace the provisions of the BGB and other national private laws and insofar render private
international law unnecessary. A common code of private law would offer citizens and businessmen the
possibility of dealing with goods, services, securities, documents of value and more under the same legal
conditions in all countries of the European Union. The performance of contracts would be governed by the
same provisions; injury to health and damage to property--arising from traffic accidents, for example--would
be compensated equally in all Member States. The creation of a common European Code of private law
would appear to correspond to the conditions of the common market and the recently established Economic
and Monetary Union.
But despite first impressions, that which formerly served the harmonization of national private law need
not necessarily be appropriate for the European private law of our era. The reasons for this have been
expounded upon on several occasions.
n37
Several key words will therefore suffice, particularly with regard
to the needs, the acceptance and the stage of preparation of such a legal uniformity. In the first regard, it
seems to be highly doubtful whether such extensive uniformity of private law in Europe is required--a
question pertaining both to the legal policy and European law based on Article 5 of the EC Treaty (formerly
Article 3b) in combination with the provisions on legal harmonization (Articles 94 et seq., (formerly Articles
100 et seq.) EC Treaty). Actually, the needs of the integration process and the aims of the EC Treaty are
perhaps equally or even better served by further partial harmonization steps via single directives
accompanied by a permanent progress of cooperation between the legislators and the courts of the Member
States and by a rapprochement of legal education within the Union.
n38
As regards European law, one has
to consider that Article 5 limits the competence of the EU through the principle of subsidiarity. "In areas which
do not fall within its exclusive competence, the Community shall take action, in accordance with the principle
of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by
the Member States and can therefore, by reason of scale or effects of the proposed action, be better
achieved by the Community." Concerning legal policy the role played by legal codes in sentiments of tradition
and national confidence must not be overlooked (this is particularly the case with the French code).
n39
Most
probably, today and in the near future a regulation establishing a European civil code would not be regarded
as a symbol of integration by many European citizens but rather as a provocative demonstration of an ugly
centralism and painful loss of cultural identity. Nevertheless, even if it were in fact possible to put into force a
European code within a short period of time, its chances of success would be limited. There would be a risk
that it would prove inferior to national laws in terms of quality due to lack of preparation and that its norms
would not be understood on the same doctrinal basis and in the same way and as a consequence applied
differently in [*468] each country.
Altogether, one ought not to underestimate the extent to which lawyers and peoples of the Member
States are accustomed to their respective laws and style of law. A common European private law should
therefore only be developed gradually. It ought to be forced as little as possible and should be grown from
the bottom.
n40
An increasingly European perspective in legal studies,
n41
a stronger exchange between
academics and practitioners from different countries as to their national experiences and styles, the
development of a common forum for publication and discussion and a corresponding change toward a
European legal literature could expedite this in the long term. In the meantime, however, Europeans appear
not to be motivated to undertake an extensive codification of private law. Rather, they seem able and willing
to take other steps toward a progressive Europeanization of private law. Further, small, more specific pieces
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of Union legislation could be combined with a growing cooperation between the several national legal orders
on several levels and with the development of common research and education. Probably, in a larger
perspective all this could be used to prepare a common European legal code should it really be seen as
desirable.
IV. PLURALISM OF CURRENT PRIVATE LAW
Notwithstanding this long-term view, it seems under present conditions very probable and desirable that
the BGB will continue to exist into the 21st century--however, unlike at the beginning of the 20th century, no
longer as an autochthonous German national legal code excluding "foreign" law and "foreign" jurisprudence.
n42 Rather, within its sphere of operation it will co-exist with the provisions of supranational Community law
and international uniform law. This co-existence of differing types of private law requires, however, from a
systematic and methodical viewpoint a more far-reaching change of perspective than when one codification
is merely replaced by another. Even if the familiar BGB were to be replaced by a European civil law code, it
would question the conventional ideas as to the systemic unity of private law.
n43
In the private law tradition,
the codification should guarantee that the whole area of private law is well organized by a precisely
elaborated, comprehensive system of legal norms formed by one legislature. Contradictions within [*469]
the law would be avoided by having the entire system originate from one act of legislation of one legislature.
It would enable the lawyers to understand clearly the purpose which the legislators wished to achieve by the
norms and to take them into consideration when interpreting and applying the code. Today, however,--with
national and European law existing side by side--several legislatures give private law its scope, base it upon
their own respective concepts and pursue with it specific regulative goals and legal policy programs. Legal
harmonization and the dynamic relationship between the legal systems renders the concept of referring all
legal norms to a unique legislative authority unsustainable, even hypothetically. For example, a Council
Directive is enacted by the legislative organs of the EC (i.e. the Council, Commission and Parliament), and
has to be transposed by the national legislatures (parliaments and governments) into the law of each
Member State. In the interpretation and application of this so-called harmonized law, the courts must take
into account the intentions and purposes of both legislatures. In comparison, an EC Regulation applies in all
the Member States without an additional act of implementation by the national legislatures. In most cases,
however, EC Regulations only affect a very small area of private law and have to be combined with
numerous legal rules in the Member States in order to be applied.
n44
Regarding the application of law, one
must not look to legislative intent or the purpose of a single law, but rather to the possibly conflicting
intentions of different legislatures and the purposes of different legislative acts.
The implementation of EC Directives and the adaptation of primary Community law has resulted in the
BGB itself becoming in part an implementing law for Community provisions (e.g. 611a and b; 613a, 651a,
651k BGB). Aside from this, the transposition of Community law into national private law progresses largely
in the form of individual statutes, which do, however, take into consideration the different regulative goals
and categories of Community private law in contrast to the traditional national codes. For example, there is
the Product Liability Act which exists alongside the provisions relating to product liability in the BGB's section
on tort law. Its contents were determined by the EC in a Directive based on EC consumer protection
programs of 1975, 1981 and by the German legislature through an implementing statute.
n45
Simultaneously, this "German-European" Act refers in several matters to the BGB
n46
and furthermore
requires in its application supplementation by provisions of the BGB.
n47
In [*470] addition to the Product
Liability Act (Produkthaftungsgesetz), the Consumer Credit Act (Verbraucherkreditgesetz), Doorstep Sales
Act (Hausturwiderrufsgesetz) and most recently the changes to the Standard Terms of Business Act (Gesetz
uber die Allgemeinen Geschaftsbedingungen)
n48
are further examples of core areas of private law based
on Community law. Community regulations are under consideration--albeit at different stages--for consumer
purchase,
n49
chattel securities, service liability (a delayed as opposed to a canceled regulation plan)
n50
and the so-called economie sociale, i.e. large areas of the law of associations, foundations and mutual
societies.
n51
Moreover, Community private law and the BGB differ from each other in their concept of regulation. For
example, the BGB served to unify law and today guarantees legal uniformity within a national framework.
The Community Directives' aim, however, is to harmonize law.
n52
They often contain minimum standards
only and allow national legislators flexibility in their implementation.
n53
They establish legal unity at most in
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a sense which is different from and less strict than the aims pursued by the BGB. Above all, however,
Community private law lacks the claim of national codifications to an inner system. The Directives and
resolutions serve the realization of [*471] individual policies of the Community and are based on
corresponding provisions in the EC Treaty
n54
and respective plans of action. Within the framework of these
individual policies they have created a partial European private law for a growing number of legal areas but
do not have as their purpose the formation of a comprehensive system.
n55
This co-existence of a fragmented supranational and national law defies ideas of a comprehensive and
autonomous legal system which the legislature has striven to achieve since the 18th century and has had an
influence on the contours of national private law.
n56
Codification was, according to the legislative theories of
later natural law, to transfer the self-contained even more geometrico system of natural private law into
positive law.
n57
The unity of the system denotes the accuracy of its norms and justifies the extensive
regulation of private law by the code. This model accompanied private law along its path to the modern day,
n58 however, it inadequately grasps the current structural changes from the monism of a codified national
private law to the partial pluralism of private laws, which are prepared, enacted or implemented by different
levels of authority.
The internationalization and Europeanization of private law reinforce additional developments which
have considerably qualified the role of private law codification at national level. Private law is in many
respects shaped by constitutional evaluations.
n59
Important sections have become to a large extent
dogmatically independent from traditional core areas, often assisted by an interlocking with public law.
n60
Certain enactments together with legal developments by the judiciary
n61
have allowed conventional core
areas of private law to become a "legal mixture"
n62
of statutory law (in the form of codification and individual
statutes) and case law. To the extent that this "legal mixture" takes the place of the codification which before
solely regulated this [*472] legal area, one may claim that a process of "de-codification"
n63
has taken
place. The international harmonization of laws, for example the law on sales and the European assimilation
of laws resulting from EC Directives have in recent times furthered this process of "de-codification" on the
European continent. Equally, from the opposite starting point, this European harmonization of laws has on
the other side of the Channel led to an increase in the growth of statute law in a private law system
conventionally characterized by case law.
V. TASKS FOR THE LEGISLATURE AND JURISPRUDENCE
The new functions and working methods--which may materialize from the present day position of the
BGB in a "pluralistic" private law and as particularistic law in the common market of a Europe growing
together--shall by way of conclusion be considered in brief from five aspects. These are the implementation
of Directives and other areas of legislation, court decisions, doctrine and legal education.
A. Extensive Implementation
With regard to the Directive-based harmonization of laws, evaluations and solutions need to be attuned
despite the differences between national legal systems and community law with respect to the origin,
character and purposes of the rules of national and Community legal systems. As far as possible,
comprehensive systematic references need to be established between national rules and Community law.
The national legislatures can from time to time provide assistance by applying the provisions of individual
Directives far beyond the scope of application required by Community law. They are implemented
"voluntarily" so as to re-model entire areas of domestic law (usually called "extensive implementation").
n64
Aside from this, there have been up to now only isolated cases
n65
in which doctrines in related legal areas
are beginning to nestle alongside the legal norms contained in Directives. As a means of linking German
private law to the private law Directives of the Community, it is perhaps encouraging that the legal thinking
and legal political concern of the latter are largely established by common European developments that have
gone before (e.g. in standard form contracts or general business conditions, product liability and travel tour
contract law).
n66
The link [*473] from German private law to the private law Directives of the Community is
largely established by common European developments.
B. Rapprochement by Legislation
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Experience of neighboring legal orders, their ways of dealing with problems and their developmental
tendencies should be taken into consideration in every legislative act in the area of private law. The old
postulate of legislative wisdom demands this--the prudentia legislatoria--with respect to the actual needs of
business, communication and discussion in an international context. Thereby the two goals should be,
whenever possible, interconnected: the search for the best solution--shown by the traditional official inquiry in
preparing statutes--and the harmonization of national laws in Europe. The compatibility with other national
and international law can, in conditions of diverse international relations, be the determining factor for the
quality of a legal code.
n67
C. Comparative-Harmonizing Interpretation in Court Decisions
The new challenge facing the courts is a comparative or a "comparative-harmonizing" interpretation.
n68
The interpretation of the rules of the BGB and private law statutes should not be limited to a national context
but should compare the rule concerned with similar rules in other European states and take into account the
way the national courts interpret them. As far as possible, the interpretations and thereby the experiences of
other jurisdictions should be considered and included in the application of the corresponding rule in national
private law. This approach is methodologically permitted in German private law. The historical legislature that
produced the BGB--unlike some foreign legislatures
n69
--deliberately dispensed with defining statutory rules
of interpretation and thereby with forcing the application of the legal code permanently into the corset of
methodological ideas of its time. Rather, the German legislature considered the decision on methods of
interpretation--in accordance with the traditions of the historical legal school and wisely self-limiting--to be
domain of the courts and [*474] legal scholars.
n70
The possibility to reflect changes in the legal system
and academic opinion through new developments in the methods of statutory interpretation was thereby
retained. For example, once the German constitution came into force in 1949, a new method of interpreting
private law rules was adopted: an interpretation conforming to the constitution (Verfassungskonforme
Auslegung). It supplemented the four traditional methods of interpretation (the wording and grammar
method; the historical method which looks to legislative intent; the systematic method which looks to the
legal context of the norm underlying the rule concerned; the teleological method of interpretation which looks
to the objective purpose of the rule even if it should differ from the historical intentions of the legislature).
n71
Jurisprudence and modern case law have made it possible to include comparative points of view in the
interpretation of private law and in appropriate cases to make a considerable contribution to legal
harmonization in Europe without legislative intervention.
D. Comparative Approach in Legal Doctrine
The doctrine of private law is faced with the question of whether the reduced regulatory power of the
legislature in the pluralism of fragmented and particularistic private law can partly be compensated by
extra-legislative legal elaboration and harmonization.
n72
By way of exaggeration, insofar as a unified
system is not professed by an act of codification, academic understanding among lawyers, the development
of common terms and institutes and the consideration of different laws from related starting points in the
doctrine gain in importance for the theory and practice of private law. Normally, the courts can scarcely
conduct their own comparative examinations from case to case with a view to "harmonizing" national legal
systems. They have to decide the case as soon as possible and have neither the time nor the resources to
undertake extensive comparative research. Rather, they should be able to rely on academia. Comparative
lawyers should establish an overview of problem solutions and development directions to demonstrate
differences and common ground in individual legal questions, and finally by demonstrating common
principles show a framework providing orientation for legal harmonization.
n73
A growing number of larger and smaller studies have recently applied themselves to this problem in a
number of subjects--ranging from culpa in contrahendo to the difficult relationship between sales and
property law.
n74
Larger works on contract law [*475] and European tort law have recently been published.
n75 A new approach is trying to establish a European doctrine of private law based on comparison. The most
important results in this field are the aforementioned works of the Lando Commission and of the UNIDROIT
institute on contract law.
n76
These joint studies by lawyers of several countries are no longer comparisons
of law in the conventional sense. They are not only interested in foreign law as a different law which has to
be applied for business transactions in other countries or within the context of private international law or
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5 Colum. J. Eur. L. 461, *473
which could be useful for suggestions of how to improve their own national law. Rather, they demand
common principles and solutions which transcend the borders of national legal systems. Continuing along
this road could currently counteract the confinement of private law to regional jurisprudence--which Rudolf
von Jhering complained about during the last century
n77
--even more than a premature attempt at
European codification
E. Common Materials in Legal Education
In German law schools, the BGB will in future have to share its place with other legal sources more so
than at present, not only with statutes and extensive case law for the continued development of private law at
national level but also with legal texts of transnational origin. How the learner is to avoid drowning in an ever
rising flow of individual areas and concepts should be discussed elsewhere.
n78
This problem in legal
education is alleviated by several excellent textbooks on private law and by masterly didactic works, but they
do not in and of themselves solve the problem.
n79
The heart of the matter is less concerned with didactic
questions than with the fundamental changes to the subject. In any event, there are several new literary aids
under discussion, for example the principles of European contract law, commented by their authors (Lando,
etc.), and the first textbooks and reference books aimed at comparison on a European level.
n80
Obviously,
such literature will not suffice for the student who will probably be working principally with German law. But
by reason of this "common European" approach, he is more likely to be able to handle different legal systems
than a lawyer [*476] trained simply on a national level, to communicate with lawyers of other countries and
understand and apply the private law of Germany in a European context.
VI. FINAL REMARKS
Instead of a conclusion I would just like to emphasize three major points at the end. First, the BGB, or
other corresponding national codes are indispensable for individual countries as the cornerstones of their
private law in the process of the coalescence of Europe as a legal community and are in no way to be
disregarded. The perception of the BGB has to a certain extent freed itself from the legal nationalism which
accompanied its enactment one hundred years ago. At its centenary the code is regarded as part of the
European legal tradition and its legal culture. Secondly, they do not alone form the foundations of private law
in Europe. The addition of new forms of common private laws has created a pluralism which has become a
difficult challenge for current day jurisprudence and legal practice. Lawyers will have to learn to work with a
complex structure of private law including national, international and supranational elements. Third, the need
for common understanding and research between lawyers of different nations in the field of future
development, application and teaching of private law has thereby increased. This international context can
increasingly influence legal workings with the proven BGB and allow the European basis of the German legal
code to emerge in a new light. This applies more or less to the other legal codes of the European continent
as well. Thereby, the most important challenges for comparative lawyers in Europe will be to evaluate the
experiences with all these codes looking for the best solutions to practical legal problems and looking for
common principles contained in these codes despite the different formulations of their rules. On this basis
they could try to approach the study of law in their respective countries and prepare a future common
doctrine of European private law.
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawEqual ProtectionPovertyGovernmentsLegislationTypes of StatutesReal Property
LawPurchase & SaleContracts of SaleEnforceabilityMistake
FOOTNOTES:
n1 August 15, 1896, RGBl. 195.
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5 Colum. J. Eur. L. 461, *475
n2 On the origins of the BGB see Die Beratung des Burgerlichen Gesetzbuchs in systematischer Zusammenstellung der
unveroffentlichten Quellen (Horst Heinrich Jakobs, Werner Schubert eds., 1978); Michael John, Politics and the Law in Late
Nineteenth-Century Germany--The Origins of the Civil Code (1989); Hans Schulte-Nolke, Das Reichsjustizamt und die
Entstehung des Burgerlichen Gesetzbuchs (1995).
n3 The so-called Historical Legal school and in particular the Pandect doctrines of the 19th century were fundamentally
important for this jurisprudence. The Pandect doctrines attempted to develop a modern system of private law using the sources
and concepts of Roman law (in particular those parts of Roman law entitled "Pandects") as a basis. Roman law was taught at
all German universities (whatever statutes and codes were in force in the state concerned) and the textbooks of the leading
scholars Savigny, Puchta and Windscheid were used in all German states. See Franz Wieacker, A History of Private Law in
Europe 300 et seq. (Tony Weir trans., 1995).
n4 Beginning in 1834, the most important German states (i.e. Prussia, Bavaria, Saxony) formed a common economic area.
This promoted the development of a common commercial law and a common jurisprudence of trade law. See Hans Schlosser,
Grundzuge der Neueren Privatrechtsgeschichte 149 (8th ed., 1996).
n5 See, e.g., the General German Bill of Exchange Order of 1848 (Allgemeine Deutsche Wechselordnung); and the General
German Commercial Code of 1861(Allgemeines Deutsches Handelsgesetzbuch). This latter code was based on the draft by a
commission representing several German States and was recommended by the Bundesversammlung (Federal Conference of
German states). On the basis of this recommendation, the draft was adopted by most of the German states as their individual
code. See 3 Karl Kroeschell, Deutsche Rechtsgeschichte 174 (2d ed. 1993).
n6 Just like these countries, all other Member States in the EU have their own private legal codes. Additionally, in Great Britain,
Scotland has its own separate legal system. Altogether, there are at least 16 different jurisdictions within the EU. See Josephine
Steiner and Lorna Woods, Textbook on EC Law 3-12 (6th ed., 1998).
n7 The General Civil Code of the Prussian State came into force in 1794 as a civil code for the several provinces of the
Kingdom of Prussia, covering a large part of northern and eastern Germany. The Codex Maximilianeus takes its title from a
Bavarian King and came into force in 1756. The Baden State Law was based upon the French Code civil. It formed the law of
the State of Baden in south-western Germany. These and many more codes and statutes constituted the respective laws of
each of the numerous sovereign states existing in Germany at this time. When these States (with the exception of Austria)
formed the German Reich in 1871, these particular codes relating to the core of private law ("Zivilrecht"), were still in force.
However, in 1873 the Reich attained legislative competence in this area by an amendment to its constitution. In the following
decades, the uniform Burgerliches Gesetzbuch was prepared. It was finally approved by the Reichstag in 1896.
n8 For a depiction of the legal diversity in the German Reich see Annex 1 of the Memorandum of the Draft of a Civil Legal
Code 1896 (Anlage I der Denkschrift zum Entwurf eines Burgerlichen Gesetzbuchs); see also Schlosser, supra note 4, at 96.
n9 European Community Law has existed as supranational law since the founding of the European Communities in 1950's; for
the principle of the supremacy of EC Law over national law see Steiner & Woods, supra note 6, at 77 et seq.; concerning its
origins see 1 Reiner Schulze and Thomas Hoeren, Dokumente zum Europaischen Recht, Grundungsvertrage (1999).
Page 9
5 Colum. J. Eur. L. 461, *476
n10 Some statutes apply in all Member States of the EU not as Community law, but on the basis of international agreements,
e.g. European Convention on Jurisdiction and the Enforcement of Judgements. In addition, all or most of Member States of the
EU apply some international conventions which also apply beyond the boundaries of Europe, e.g. the Convention of
International Sale of Goods.
n11 See infra V. D.
n12 See Jurgen Basedow, The Renascence of Uniform Law--European contract law and its components, 1998 Legal Studies
121 (1998); Peter-Christian Muller-Graff, Europaisches Gemeinschaftsrecht und Privatrecht, 51 Neue juristische Wochenschrift
[NJW] 13 (1998); Oliver Remien, Uber den Stil des Europaischen Privatrechts, 60 Rabels Zeitung [RabelsZ] 1 (1996); Reiner
Schulze, Allgemeine Rechtsgrundsatze und europaisches Privatrecht, 1 Zeitschrift fur Europaisches Privatrecht [ZEuP] 442
(1993); Peter Ulmer, Vom deutschen zum europaischen Privatrecht, 1992 JZ 1 (1992).
n13 See infra note 50; see also Steiner & Woods, supra note 6, at 3-12. For further information on enforcement of Community
rights see Josephine Steiner, Enforcing EC Law 42 (1995).
n14 European Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters of September
27, 1968, BGBl. II 1972, 774 et. seq.
n15 When a lawyer has to determine the jurisdiction for an international claim within the EU, he should not refer to his own
national legal system, but to this Convention, as far as applicable, and its interpretation by the European Court of Justice. This
interpretation is binding on the whole of the EU. See LTU Lufttransportunternehmen GmbH & Co. KG v. Eurocontrol, Case
29/76, 1976 E.C.R. 1541; Jan Kropholler, Europaisches Zivilprozebrecht: Kommentar zum EuGVU 318 (6th ed. 1998).
n16 This term denotes in the following the United Nations Convention on International Sales of Goods of April 11, 1980, (BGBl.
II S.588), which came into force in the Federal Republic of Germany on January 1, 1991, (BGBl. II S.1497); for summaries of
the unified law of sales see Ulrich Magnus, Aktuelle Fragen des UN-Kaufrechts, 1 ZEuP 79 (1993); Ulrich Magnus, Stand und
Entwicklung des UN-Kaufrechts, 1 ZEuP 202 (1995).
n17 See Kommentar zum UN-Kaufrecht, (Heinrich Honsell ed., 1997).
n18 433 et. seq. BGB.
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5 Colum. J. Eur. L. 461, *476
n19 See Steiner, supra note 6, at 10 et. seq.
n20 E.g. Koninklijke Nederlandse Hoogovens en Staalfabrieken V.V. v. High Authority of the European Coal & Steel
Community, Case 14/61, 1962 E.C.R. 511 (on the principle of proportionality); J.G. van der Veen v. Bestuur der sociale
Verzekeringsbank, Case 100/63, 1964 E.C.R. 1213 (on the unlawfulness of backdating); Leda De Bruyn v. European
Parliament, Case 25/60, 1962 E.C.R. 43 (on the unlawfulness of arbitrary rule).
n21 Armin von Bogdandy, Europa 1992--Die aubervertragliche Haftung der Europaischen Gemeinschaften, 30 Juristische
Schulung [JuS] 872 (1990).
n22 See Klaus Peter Berger, Formalisierte oder "schleichende" Kodifizierung des transnationalen Wirtschaftsrechts--Zu den
methodischen und praktischen Grundlagen der lex mercatoria (1996); Michael Coester, Entwicklungen im europaischen
Nichtehelichenrecht, 1 ZEuP 536 (1993); 1 Hein Kotz, Europaisches Vertragsrecht (1996); Schulze, supra note 12.
n23 Institute for the Unification of Private Law. Concerning the aims pursued by this institute see M. Joachim Bonell, Die
UNIDROIT-Prinzipien der internationalen Handelsvertrage--Eine neue Lex Mercatoria?, 37 Zeitschrift fur Rechtsvergleichung,
int. Privatrecht & Europarecht [ZfRV] 153 (1996).
n24 See The principles of European Contract Law, Part I: Performance, Non-Performance and Remedies (Ole Lando and
Hugh Beale eds., 1995). In addition the draft European Contract Legal Code has recently been published by the Academy of
European Private Law Jurists (1995). On this project see Guiseppe Gandolfi, Pour un code europeen des contrats, 91 R.T.D.C.
707 (1992). On trust law see D.J.Hayton, Sebastian Kortmann and Hendrik Verhagen, Principles of European Trust Law (1999).
n25 1896 RGBl. S.195.
n26 See IV., infra.
n27 See Schulte Nolke, supra note 2, at 236. The reference is to the victory of Gravelotte-St. Privat on August 18, 1870 in the
war against France. "Ein Volk. Ein Reich. Ein Recht," Deutsche Juristen-Zeitung 1900, Nr.1.
n28 See e.g. the Reichstag debates on the BGB, Stenographic Reports on the Discussions of the German Reichstag, Session
of February 2, 1896, 705 et. seq.; on the evaluation of French law in Germany in the 19th century see Reiner Schulze,
Preubisches Allgemeines Landrecht und rheinisch-franzosisches Recht, in 200 Jahre Allgemeines Landrecht fur die
preubischen Staaten 387 (Barbara Dolemeyer and Heinz Mohnhaupt eds., 1995).
Page 11
5 Colum. J. Eur. L. 461, *476
n29 For an overview see Rheinisches Recht und Europaische Rechtsgeschichte (Reiner Schulze ed., 1998).
n30 See Wieacker, supra note 3, at 18.
n31 For a summary see Helmut Coing, Europaische Grundlagen des modernen Privatrechts--Nationale Gesetzgebung und
europaische Rechtsdiskussion im 19. Jahrhundert (1986); Helmut Coing, Das Recht als Element der europaischen Kultur, 238
Historische Zeitschrift [HZ] 1 (1984).
n32 Examples include the Hungarian drafts of 1917, the Soviet Union 1923, and Greece 1940/1946; for a summary see Konrad
Zweigert and Hein Kotz, Einfuhrung in die Rechtsvergleichung 153 (3d ed., Tony Weir, trans., 1996).
n33 See Zweigert & Kotz, supra note 32, at 154. One should bear in mind that recent legislation in Eastern Europe mainly uses
several Western laws as a means of orientation, among them German law and in particular the new legal code of the
Netherlands, and for commercial law it also uses Common Law. See addionally Attila Harmathy, Zivilgesetzgebung in mittel-
und osteuropaischen Staaten, 6 ZEuP 553 (1998); and for Poland Jerzy Poczobut, Zur Reform des polnischen Zivilrechts, 7
ZEuP 75 (1999).
n34 See Wieacker, supra note 3; but see Zweigert & Kotz, supra note 32, at 395.
n35 Parliament Resolution of 1989, EC Document A 2-157/89, O.J. (C 158) 400; Resolution of 1994, EC Document A
3-329/94, also published in 3 ZEuP 1995, 669 et. seq. (1995).
n36 See Winfried Tilmann, Zweiter Kodifikationsbeschlub des Europaischen Parlamentes, 3 ZEuP 534 (1995); Towards a
European Civil Code (A.S. Hartkamp et al. eds., 1994).
n37 See Oliver Remien, Illusion und Realitat eines europaischen Privatrechts, 47 JZ 281 (1992); Reiner Schulze,
Gemeineuropaisches Privatrecht und Rechtsgeschichte, in Gemeinsames Privatrecht in der Europaischen Gemeinschaft 71, 74
(Peter Christian Muller-Graff ed., 1993); Ulmer, supra note 12, at 5 et seq. For a different opinion see Tilmann, supra note 36, at
534.
n38 On the question of the extension of the Court structure to safeguard legal unity see Reiner Schulze, Vergleichende
Gesetzesauslegung und Rechtsangleichung, 36 ZfRV 183, 192 (1997).
n39 See Zweigert & Kotz, supra note 32, at 92.
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5 Colum. J. Eur. L. 461, *476
n40 See Christian Armbruster, Ein Schuldvertragsrecht fur Europa?, 60 RabelsZ 72, 89 (1996); Eugen Bucher,
Recht--Geschichtlichkeit--Europa, in Vers un droit prive europeen commun? An Outline of Common European Private Law 7
(1994).
n41 For the demand and a description of the increasing tendency in universities to teach law from a European perspective see
Axel Flessner, Rechtsvereinheitlichung durch Juristenausbildung, 56 RabelsZ 243, 258 (1992); Dietmar Willoweit and Bernhard
Grobfeld, Juristen fur Europa, 45 JZ 605 (1990).
n42 E.g., the law in western German regions was criticized and condemned as "foreign" because of its French origins, see
supra note 28. For the "Volksgeist"-doctrine seeFriedrich Carl von Savigny, Vom Berufe unserer Zeit fur Gesetzgebung und
Rechtswissenschaft 14 (1814); Horst Heinrich Jakobs, Wissenschaft und Gesetzgebung im Burgerlichen Recht nach der
Rechtsquellenlehre des 19. Jahrhunderts (1983); Horst Heinrich Jakobs, Die Begrundung der geschichtlichen
Rechtswissenschaft (1992); Joachim Ruckert, Idealismus Jurisprudenz und Politik bei Friedrich Carl von Savigny (1984).
n43 See Franz Wieacker, Aufstieg, Blute und Krisis der Kodifikationslehre, Festschrift fur Franz Bohmer 34 (1954).
n44 See e.g. Council Regulation 4064/89/EEC, 1989 O.J. (L 395) 1 (on the Control of Concentrations between Undertakings
[Merger Regulation]). The procedures for merger pre-notification, time limits and other administrative matters are dealt with in
Commission Regulation 2397/90/EEC, 1989 O.J. (L 061) 1 (on the notifications, time-limits and hearings provided for in Council
Regulation 4064/89); Council Regulation 2137/85/EEC, 1985 O.J. (L 199) 1 (on the European Economic Interest Grouping
[EEIG]).
n45 Council Directive 85/374/EEC, 1985 O.J. (L 210) 29 (on the Approximation of Laws, Regulations and Administrative
Provisions of the member States concerning Liability for Defective Products); The First Programme of the EEC on a Policy for
the Protection and Eductaion of the Consumer, 1975 O.J. (C 92) 1; Council Resolution, 1981 O.J. (C 133) 1 (regarding a
Second Programme on a Policy for the Protection and Education of the Consumer); Eike von Hippel, Verbraucherschutz, 294
(3d ed. 1986).
n46 E.g., for periodical payments 9, para. 2, and limitation 12, para. 3 Produkthaftungsgesetz [ProdHG] (Product Liability
Act) v. 15. 12. 1989, BGBl. I 1989, S. 2198.
n47 E.g., the term "Sache" (i.e. "article of property") corresponds in 1, para. 1 of the Product Liability Act to the term in 90
BGB; Burgerliches Gesetzbuch (Otto Palandt (former ed.), 58th ed. 1999). 1 ProdHG, marginal note 5.
n48 Produkthaftungsgesetz, v. 15.12.1989, i.d. Fassung v. 30.9.1994 (BGBl. II S.2658), see supra note 45; this statute was
based on Council Directive 85/374/EEC, 1985 O.J. (L 210) 29 (on the Approximation of the Laws, Regulations and
Administrative Provisions of the Member States concerning Liability for Defective Products); Verbraucherkreditgesetz
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5 Colum. J. Eur. L. 461, *476
[VerbrKG], v. 17.12.1990, i.d. Fassung v. 20.12.1996 (BGBl. I S.2154); this statute was based on Council Directive 87/102/EEC,
1987 O.J. (L042) 48 (on the Approximation Provisions of the Member States Concerning Consumer Credit);
Hausturwiderrufsgesetz [HausturWG], v. 16.1.1986, i.d. Fassung v. 20.12.1996 (BGBl. I S.2154); this statute was based on
Council Directive 85/577/EEC, 1985 O.J. (L 372) 31 (to Protect the Consumer in respect of Contracts Negotiated Away from
Business Premises); Gesetz uber die Allgemeinen Geschaftsbedingungen [AGBG], v. 9.12.1976, i.d. Fassung v. 19.7.1996
(BGBl. I S.1013), this statute was based on Council Directive 97/13/EEC, 1993 O.J. (L 95) 29 (on Unfair Terms in Consumer
Contracts); for a summary see Peter Hommelhoff, Zivilrecht unter dem Einflub europaischer Rechtsangleichung, 192 AcP 72
(1992); Michael Schweitzer and Waldemar Hummer, Europarecht 485 (5th ed. 1996); concerning one-sided orientation of
consumer protection laws see Muller-Graff, supra note 12, at 19 et seq.
n49 See Council Directive 99/44/EEC, 1999 O.J. (C 12) 8 (relating to the Purchase and guarantee of Consumer Goods);
Ewoud Hondius, Kaufen ohne Risiko: Der europaische Richtlinienentwurf zum Verbraucherkauf und zur Verbrauchergarantie,
ZEuP 130 (1997); Dieter Medicus, Ein neues Kaufrecht fur Verbraucher?, Zeitschrift fur Wirtschaftsrecht und Insolvenzpraxis
[ZIP] 1996, 1925.
n50 See Draft Commission Directive of December 20, 1991, 1991 O.J. (C 12) 8; Jurgen Basedow, Haftungen fur
Dienstleistungen--die Denkpause nutzen, ZEuP 1 (1995).
n51 The progress of the pre-consideration stage may be seen from a communication by the Presseverband der Stiftungen
issued on December 1994, at 5.
n52 See Christoph Eiden, Die Rechtsangleichung gemab Art. 100 des EWG-Vertrages (1984); Hans von der Groeben, Jochen
Thiesing and Claus Dieter Ehlermann, Kommentar zum EWG-Vertrag, vol. 2, at n. 35 (4th ed., 1991); Peter-Christian
Muller-Graff, Gemeinsames Privatrecht in der Europaischen Gemeinschaft--Ebenen und gemeinschaftsprivatrechtliche
Grundfragen, in Festschrift fur Bodo Borner 303 (Jurgen F. Bauer et al. eds., 1992); Peter Christian Muller-Graff, Privatrecht
und Europaisches Gemeinschaftsrecht, in Gemeinsames Privatrecht in der Europaischen Gemeinschaft 195 (Peter Christian
Muller-Graff ed., 1993); Remien, supra note 37; Fritz Rittner, Das Gemeinschaftsrecht und die europaische Integration, 50 JZ
851 (1995); Ulmer, supra note 12.
n53 See Von der Groeben et al., supra note 52; Rittner, supra note 52, at 851.
n54 See, e.g., Art. 141 EC Treaty (Equal pay for men and women) and Art. 153 EC Treaty (Consumer Protection); see
consumer protection programs, supra note 45.
n55 See Rittner, supra note 52, at 855.
n56 See Wieacker, supra note 43.
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5 Colum. J. Eur. L. 461, *476
n57 See Wieacker, supra note 43, at 433. These legislative theories--e.g., the school of Christian Wolff, a German Scholar of
the 18th Century--tried to elaborate the whole system of a natural private law by deducing all legal rules from some legal
principles. The method of deduction seemed to follow the same logical rules as in mathematics, thereby establishing a legal
system more geometrico.
n58 See Wieacker, supra note 43.
n59 For example, 253 BGB did not allow for compensation of non-pecuniary damages. This compensation was, however,
introduced by the courts, relying on the superiority of constitutional principles. C.f. the decisions BGHZ 26, 249 et. seq.
("Herrenreiter"); confirmed by BVerfGE 34, 369 et seq. For more examples, see Claus-Wilhelm Canaris, Grundrechtswirkungen
und Verhaltnismabigkeitsprinzip in der richterlichen Anwendung und Fortbildung des Privatrechts, JuS 161 (1989); Joachim
Schmidt-Salzer, Vertragsfreiheit und Verfassungsrecht, NJW 8 (1970).
n60 For the development of administrative law concerning trade and industry see, e.g., Klaus Lackhoff, Deutsches
Wirtschaftsverwaltungsrecht und die Grundfreiheiten der Artikel 30, 34, 48, 52 und 59 EGV (1994); Wirtschaftsverwaltungsrecht
in Europa (Rolf Stober ed., 1993).
n61 For a seminal early analysis see Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des
Privatrechts--rechtsvergleichende Beitrage zur Rechtsquellen- und Interpretationslehre (3d ed. 1974); for a more recent
summary see Manfred Rehbinder, Zur Rechtsqualitat des Richterspruchs im System kodifizierten Rechts, 31 JuS 542 (1991).
n62 Gerhard Dilcher, Vom Beitrag der Rechtsgeschichte zu einer zeitgemaben Zivilrechtswissenschaft, 184 Archiv fur
civilistische Praxis [AcP] 247, 255, 286 (1984).
n63 The seminal work on this subject is Natalino Irti, L'eta della decodificazione (3d ed. 1989).
n64 The new German Corporate Transformation Act (Umwandlungsgesetz [UmwG], v. 28.10.1994, BGBl. I, S. 3210) regulates
the merger and split-up of several types of companies based on a pattern of Directives which otherwise only apply to stock
corporations; see e.g. Council Directive 78/855/EEC, 1978 O.J. (L 295) 36 (Third Company law Directive concerning the
Merging of Public Limited Liability Companies at National level); Council Directive 82/891/EEC, 1982 O.J. (L 378) 47 (based on
Article 53(3)(g) of the Treaty concerning the Division of Public Limited Liability Companies); for a summary see Kommentar zum
Umwandlungsrecht (Klaus Goutier et al. eds., 1995).
n65 823 BGB, the main provision in the German law of torts, could be adapted to the more precise provisions of the German
Product Liability Act (which is based on an EC Directive), relating to certain consequential damages (so-called "weiterfressende
Mangel"). See Peter Marburger, Grundsatzfragen des Haftungsrechts unter dem Einflub der gesetzlichen Regelungen zur
Produzentenund zur Umwelthaftung, 1 AcP 10 (1992).
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5 Colum. J. Eur. L. 461, *476
n66 With respect to these issues, the EC Directive, German case law and later German legislation followed the flow of a
development widespread in Europe and partly in North America since the 60's. Similarly, the Directives on equal rights for men
and women in the workplace, consumer credits and door sales or time limited ownership could build on previous and in part
considerably older legal developments in the European countries. For an extensive comparative legal analysis see von Hippel,
supra note 45, at 46, 183.
n67 The 60th German Lawyers Congress in Munster in 1994 showed that German lawyers are prepared to take this into
consideration. One argument for the extensive reform of the law of obligations in the BGB suggested at the congress was the
adaptation of the law for breach of contract and in particular for warranties in the law of sales to the principles which apply in
most other European legal systems and to the unified law on international sales. See the discussions of the 60th German
Lawyers Congress, Munster 1994, Vol. II/1 K 7 et seq.; Vol. II/2 K 112 et seq., K 240 et seq.
n68 See Walter Odersky, Harmonisierte Auslegung und Europaische Rechtskultur, 2 ZEuP 1 (1994). For a summary of court
decisions and literature see Ulrich Drobnig, Rechtsvergleichung in der deutschen Rechtsprechung, 50 RabelsZ 610 (1986).
n69 See, e.g., 6, 7 of the Austrian AGBG; Article 12 of the introductory section of the Italian Codice civile; Article 3 of the
Spanish Codigo Civil.
n70 See Motive zu dem Entwurfe eines Burgerlichen Gesetzbuches fur das Deutsche Reich, Vol. 1, General Section 1888, 14
et seq.
n71 For the traditional method of interpretation and its new modifications see Franz Bydlinski, Juristische Methodenlehre und
Rechtsbegriffe 470 (2d ed. 1991); Karl Larenz and Wilhelm Canaris, Methodenlehre der Rechtswissenschaft 187 (3d ed. 1995);
Hans Merz, Auslegung, Luckenfullung und Normberechtigung, 163 AcP 331 (1964).
n72 This was proposed early on by Hein Kotz, Gemeineuropaisches Zivilrecht, in Festschrift fur Konrad Zweigert 481 (Herbert
Bernstein, Ulrich Drobnig and Hein Kotz eds., 1981); but see Muller-Graff, supra note 52, at 195.
n73 See Helmut Coing, Europaisierung der Rechtswissenschaft, 43 NJW 937 (1990); Hein Kotz, Europaische
Juristenausbildung, 1 ZEuP 268 (1993) 268; Willoweit & Grobfeld, supra note 41.
n74 See Franco Ferrari, Vom Abstraktionsprinzip und Konsensualprinzip zum Traditionsprinzip, 1 ZEuP 52 (1993); Stephan
Lorenz, Die culpa in contrahendo im franzosischen Recht, 2 ZEuP 218 (1994); Astrid Stadler, Gestaltungsfreiheit und
Verkehrsschutz durch Abstraktion--Eine rechtsvergleichende Studie zur abstrakten und kausalen Gestaltung
rechtsgeschaftlicher Zuwendungen anhand des deutschen, schweizerischen, osterreichischen, franzosischen und
US-amerikanischen Rechts (1996).
n75 See Kotz, supra note 22; Christian von Bar, Gemeineuropaisches Deliktsrecht, Vol. 1, Die Kernbereiche des Deliktsrechts,
Page 16
5 Colum. J. Eur. L. 461, *476
seine Angleichung in Europa und seine Einbettung in die Gesamtrechtsordnungen (1996).
n76 See supra note 23.
n77 See Rudolf von Jhering, Der Geist des romischen Rechts auf den verschiedenen Stufen seiner Entwicklung, Vol. 1, 15 (6th
ed. 1907, reprinted 1968).
n78 On this subject see Willoweit & Grobfeld, supra note 41, at 606; Flessner, supra note 41; Kotz, supra note 73.
n79 See Dieter Medicus, Burgerliches Recht (17th ed. 1996).
n80 See references supra notes 23 and 75. Furthermore, some casebooks have recently been written with the same intention.
See, e.g., Walter van Gerven, Tort--Scope of Protection (1999); Reiner Schulze and Hans Schulte-Nolke, Europaisches
Verbraucherrecht--Entscheidungen des EUGH (1999); Reiner Schulze, Arno Engel and Jackie Jones, European Private
Law--Decisions of the ECJ (forthcoming 2000).
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5 Colum. J. Eur. L. 461, *476