Allgemeines Bürgerliches Gesetzbuch (ABGB)
ABGB stands for Allgemeines Bürgerliches Gesetzbuch, roughly translating into ‘General Civil Code’. It is the most important codification of Austrian civil law.
The ABGB was officially published on 1 June 1811 as an appendix to the kaiserliches Patent 946 in the Justizgesetzsammlung 1811 (p 275). It entered into force on 1 January 1812. The ABGB therefore dates from the same period as the French Code civil. It is one of the oldest codes still in force in Austria; today, it is federal law.
When the ABGB was first enacted, it was considered to be a groundbreaking, modern piece of legislation. Deeply influenced by the age of enlightenment and natural law, its § 16, for instance, states that every human being has innate rights, simply deriving from reason. Slavery and serfdom were explicitly forbidden. At the time, this was not to be taken for granted: Emperor Franz I ruled as an absolute monarch. Metternich was about to become the most influential politician of his time, as a foreign minister in 1809, then chancellor from 1821 onwards. He established an authoritarian regime and strict censorship. By contrast, the ABGB was liberal in many ways.
Its liberal character goes back to its origins in the age of Enlightenment, during which most of the drafts and revisions had been produced, starting with a first drafting committee 1709 established by Emperor Joseph I. However, efforts faltered soon thereafter and the project came to a halt. Empress Maria Theresia (1717–80), who ruled Austria for the last 40 years of her life, ordered them to be resumed with a new committee chaired by Joseph von Azzoni, a professor from Prague. The resulting draft followed the structure established by Gaius, in personae, res, actiones, later also adopted by the ABGB. In 1766 the new committee presented the Codex Theresianus in Brno (part of the Czech Republic today). Intense criticism followed. The draft was said to be too Romanistic in style, too casuistic, too detailed and much too long. As a consequence, it was not enacted. In 1771 a revision was ordered, leading to the publication of a revised draft within a year (Entwurf Horten, named after the new chairman of the committee, Johann Bernhard Horten). Emperor Joseph II ordered another revision (performed by Horten and Joseph von Sonnenfels) before enacting the first part of the general civil code on 1 January 1787 (Josephinisches Gesetzbuch, named after Emperor Joseph II). The revision of the other two parts had not been completed when the commission stopped working on it in 1776.
Only under the next Emperor, Leopold II, did the project resume. In 1796 a new committee chaired by Karl Anton von Martini, a leading natural lawyer of his time presented a draft named after its chairman. Martini and his natural law background had a strong influence on the draft, as did the new Prussian codification of the time (Allgemeines Landrecht für die Preußischen Staaten (ALR)). While comments on the draft were still being received, it was enacted in 1797 in two of the Empire’s provinces—first in Western Galicia, then in Eastern Galicia—so as to gather practical experience. Since then the draft has been known as the Westgalizisches Gesetzbuch.
In 1797 Martini was replaced as chairman of the drafting committee by his pupil Franz von Zeiller, professor of natural law and Roman law at the University of Vienna. Based on the Martini draft and the various comments submitted by 1801, a number of amendments were made over the course of the three (legislative) readings. The first commentary on the new code, written by Zeiller, appeared briefly after the official publication of the code.
2. Geographic areas of application
The ABGB was enacted in all Austrian provinces of the empire. In addition to the territory comprising modern day Austria, that included parts of what later became Italy (Southern Tirol, Lombardy and Veneto), Bohemia and Moravia, southern Poland and Ukraine. Originally it was not enacted in provinces belonging to the Hungarian crown. After the peace treaty of Paris (1814) the ABGB was enacted in the newly added territories between 1814 and 1820, then in Cracovia, Hungary, Croatia, Slavonia (today eastern Croatia), Serbia, in Banat in 1852 (now part of Romania and Serbia) and in Transylvania in 1853 (now part of Romania). Even before the 1866 Austrian-Hungarian Compromise granted greater autonomy to the Kingdom of Hungary and established the dual monarchy, the ABGB had been abrogated in Hungary for political reasons and previous customary Hungarian private law was re-established. This had implications for Burgenland, now a state of the federal Republic of Austria but part of Hungary until 1920 (Burgenland is situated south of Vienna along today’s border). There, the ABGB was enacted only in 1920 when it became a part of Austria. A reception of the ABGB took place in Liechtenstein. Until the second half of the 20th century it also remained in force in Czechoslovakia.
3. Structure and content
The structure of the ABGB goes back to the Codex Theresianus. The code starts with an introduction ‘About civil laws in general’ (Von den bürgerlichen Gesetzen überhaupt; §§ 1–14), relating in particular to interpretation and legal methods (eg §§ 6 ff). From a modern continental civil lawyer’s perspective, these provisions would now be in the ‘general part’ (Allgemeiner Teil). Three main parts follow.
The first deals with ‘the law of persons’ (Von dem Personenrechte, §§ 15–283). It contains provisions defining legal personality, provisions that under a modern perspective one would expect to be dealt with in the general part and, predominantly, family law.
The second is ‘on property law’ (Von dem Sachenrechte, §§ 285–1341). It deals not only with the law of property, but also with issues of succession law and the law of obligations.
The third is called ‘on the common provisions of the law of persons and property law’ (Von den gemeinschaftlichen Bestimmungen der Personen- und Sachenrechte, §§ 1342–1502). These rules, for instance on prescription, would under a modern perspective be included in the general part.
The ABGB is still the most important and central piece of codification for private law in Austria. However, other Acts complement and sometimes supersede the ABGB. This is especially true for family law, where many important aspects are dealt with in the Act on Marriage (Ehegesetz, adopted from Germany in 1938); for property law, where important issues are covered by the Act on the Land Register (Grundbuchgesetz) and the Act on Residential Property (Wohnungseigentumsgesetz); for contract law, which in many ways is affected by the Consumer Protection Act (Konsumentenschutzgesetz); for tenancy law and its respective Act (Mietrechtsgesetz); for tort law (law of torts/delict, general and lex Aquilia) with various important Acts complementing the ABGB (eg regarding strict liability relating to road-traffic accidents and trains, falling under the Eisenbahn- und Kraftfahrzeughaftpflichtgesetz; state liability established by the Amtshaftungsgesetz or recourse actions against employees regulated by the Dienstnehmerhaftpflichtgesetz).
4. The first decades (1810–48)
Legal academia, heavily involved in the drafting process, was unsurprisingly the first to embrace the new ABGB. The codification was widely accepted as a great achievement. Zeiller himself had in 1810 designed a new curriculum to reshape legal education accordingly, which may have contributed to securing a positive reception of the new code. Criticism was scant. Teaching and research were engaged in familiarizing students and themselves with the new law, and academic work rarely went beyond the code’s wording. Only slowly did an emerging body of court decisions breathe life into the code. The apparent lack of critical scrutiny of the new code is perhaps less of a surprise taking into account the political circumstances of the time: criticism would have implied questioning the authorities, the government and, not least, the Emperor, who, as the constitutional lawmaker, bore the ultimate political responsibility for policy choices. For such disapproval, the period of Metternich certainly left no room.
Meanwhile, a new pattern of legal thinking was created in Prussia. The foundations for a cataclysmic change were laid by the emerging historical school, developed by Friedrich Carl von Savigny (1779–1861), who was to become its most prominent figure. The historical school stood for a radical change—dismissing the natural law which had shaped the greater part of the 18th century. It redirected attention to the continuity of historical development, the roots of law in a particular national culture and the gradual legal evolution deriving from these roots. Savigny and with him the historical school were very critical of the ABGB, although it should be noted that Savigny dismissed the idea of codification altogether. On the other hand, Anton Friedrich Justus Thibaut (1772–1840), another prominent member of the historical school, pleaded in favour of a German codification. The origins and implications of this famous controversy were not exclusively rooted in different approaches to private law; rather, the controversy carried a strong political element: Germany was still non-existent when the ABGB was enacted in the Austrian monarchy. The unification of the various small states that were to become Germany was many decades away, and the idea of a German codification became linked to the political aspirations of unifying Germany. Savigny’s fierce opposition was based on other reasons, mainly his conviction that the time was not yet ripe for a codification and that an organic, more incremental approach to harmonization would be preferable. For this process, he argued, a thorough understanding of the historical foundations would be of paramount importance; a premature code, in contrast, would erect a formidable obstacle for thorough research on the historical foundations. Codified law would seem to be severed from its origins, greatly reducing interest in historical work. That Savigny rejected the ABGB as the leading new codification of the German-speaking world in his famous essay, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814), is therefore not much of a surprise.
5. Joseph Unger and Count Thun-Hohenstein—the overhaul of the ABGB in the spirit of the historical school
The controversy over the codification of private law had not prevented the historical school from becoming the most influential authority in German legal thinking in the first half of the 19th century. New law journals were established and a vigorous academic debate emerged. Roman law and leading academics on Roman law were suddenly at the centre of this astonishing and very dynamic process.
By contrast, Austrian legal writing, at the time, was primarily focused on its new code and took only limited notice of what was going on in the various German states. This, however, was about to change when in 1848 riots caused bloodshed throughout Europe, including Austria. The protests raised fears about a revolution (the memory of the French revolution and its implication for the monarchy were still fresh). Once order had been restored, the government made it a priority to resume efforts towards a university reform as it was widely believed that a liberal higher education was one of the main causes of the unrest. As such, it was also perceived as a potential source of future threats. Additionally, the reform was seen as an opportunity to raise academic standards in general.
In this reform project, special attention was paid to legal education. Natural law was deemed to be liberal and to induce the questioning of authorities. Therefore, it had to be eliminated from the curricula. In 1849 Count Leopold Thun-Hohenstein (1811–88) was made minister of education. He remained in office for more than a decade and was able to push through against intense opposition a far-reaching reform by winning the Emperor’s support. Politically, one bone of contention was Thun-Hohenstein’s plan to establish the freedom of students to decide which courses to attend and the freedom of teachers to determine the content of their courses without any supervision. Universities were given more autonomy in administrative matters, especially regarding the appointment of professors. Generally, more rigorous quality standards were put in place. Thun-Hohenstein was a resolute defender of university autonomy. However, he himself had no hesitation in interfering with decisions universities had taken under their newly gained autonomy concerning the appointment of new professors.
Contrary to the university reforms of the previous century under Emperor Joseph II, Thun-Hohenstein did not consider vocational education to be the purpose of universities. Being a lawyer by training, Thun-Hohenstein was especially concerned with an overhaul of legal education. He wanted the Austrian legal education to be aligned with the German historical school. He expected better research and more rigorous methods. But mostly, he thought the historical school would teach the students about historical continuity and respect for authorities. There seem to be two main reasons for the lasting impact of his reforms. First, Thun-Hohenstein remained in office long enough not only to push through his reform agenda, but also to see to its implementation. Secondly, in 1857 he had the young Joseph Unger (1828–1913) appointed to a chair at the University of Vienna. Unger shared Thun-Hohenstein’s thoughts on the historical school and was to become its most prominent academic advocate in Austria. Without his influence, the success of the historical school in Austria would have been unthinkable. In spite of the codification Roman law once more became the centre of attention. Only now were the historical origins of the ABGB being examined by academics. Scholars such as Leopold Pfaff and Phillip Ritter von Harrasowsky conducted and published in-depth research on the stages of the codification process (eg Harrasowsky, Der Codex Theresianus und seine Umarbeitungen I–V, 1883–86). Julius Ofner published the draft version of the ABGB, the various amendments during the drafting process and, most importantly, the minutes of the drafting committee (Ofner, Der Ur-Entwurf und die Beratungsprotokolle des Österreichischen Allgemeinen bürgerlichen Gesetzbuches I und II, 1888 and 1889). It is interesting to note that for about the first 80 years these materials were not available, most probably for the simple reason that academic researchers of those early decades of the ABGB had no interest in the topic.
Starting with a private law textbook published in 1807 by Georg Arnold Heise (judge and leading academic of his time), the historical school conceptualized private law according to the pandectistic structure (Pandektensystem), ie general part, property law, law of obligations, family law and succession law. Adopting a new structure for textbooks may hardly seem revolutionary today, and it certainly meant less of a radical change in the various states that had not yet codified their private law (the Bürgerliches Gesetzbuch (BGB) and a unified Germany were both still decades away). That Austrian academia and legal thinking embraced the pandectistic structure (Pandektensystem) is, however, an entirely different matter because the code would have naturally imposed a different concept. This development goes back to the influence of Unger and more specifically his groundbreaking publication System des österreichischen Privatrechts (published between 1856 and 1859). Since this seminal work, all Austrian textbooks on private law, even up to today, follow its structure.
Unger had lasting influence in another, perhaps even more important, way. His strong focus on the German historical school in essence introduced a comparative lawyer’s approach to the Austrian legal profession. Academics routinely started taking into account and reflecting on German publications and court decisions. This process initiated by Unger’s work is still ongoing and, if anything, has become stronger. In many areas of law, Austrian academics, but also practising lawyers and courts, use German sources almost as if they derived from the same statutory background. Common historical roots have made this process easier for some parts of private law, commercial and company law, criminal and tax law. German law has frequently influenced court decisions and the interpretation of the ABGB.
6. After a century: three amendments (drei Teilnovellen)
Half-a-century after the publication of the ABGB the historical school had become mainstream in Austrian private law academia. It had revamped legal education and strongly influenced the courts. Thus, also, a sober assessment of the ABGB had become possible again. The idea of amending the ABGB surfaced more often, especially after the new BGB had been enacted in Germany. Some even advocated the implementation of the BGB in Austria which would have led to a unification in this area (as for commercial law, the conference of Nuremberg, which had started in 1857, had already led to a unified code enacted in all German states and in the Austrian monarchy; subsequently, however, Germany amended its commerce code simultaneously with the introduction of the BGB in 1900 after having transferred many of its rules into the BGB).
The starting point for a reform of the ABGB was an article by Unger (GrünhutsZ 31, 389) in 1904. In the same year a drafting committee was put in place. Franz Klein, the minister of justice at that time, made the reform one of his priorities and in 1907 the government submitted a draft law to the parliament (more precisely to the Herrenhaus, its upper chamber). However, the draft was strongly criticized (most prominently by Armin Ehrenzweig, Bruno Kafka and Moritz Wellspacher), and a revision was ordered. To celebrate the first century of the ABGB in 1911 a Festschrift was published in two volumes. Its contributions reflect the common opinion of the time on the need for reform; at the same time, it shows that some of the ABGB’s merits only started to be recognized by jurists after a century had elapsed. In 1812 the Herrenhaus accepted the revised draft. Due to the start of World War I (1914), however, the second chamber of the parliament (Abgeordnetenhaus) had no chance to vote on the draft. To enact it nonetheless, the government eventually passed it as three emergency decrees in 1914, 1915 and 1916 (making use of its wartime legislative power). The changes affected the law of persons, family law, the law of tutelage, general rules on contract law, sales law and tort law. While the original draft had been strongly criticized, the final version was widely regarded as a success. The reform process also led to a new perception of the qualities of the ABGB, which had sometimes been overlooked in previous decades.
After the ‘Anschluss’ of 1938 Austria was part of the Third Reich until 1945. The German commerce code was introduced for the territory of Austria. Because of the common historical roots, it was not difficult to adapt Austrian law to it. For the area of civil law, however, the differences between the ABGB and the BGB were much wider. Adolf Hitler had intended to abolish the BGB, which the Nazis considered to be alien to the German people and too strongly influenced by Roman law. The Nazis therefore planned to draft a new, more ‘Germanic’ code instead. This plan was never executed. Nonetheless it contributed to the fact that the ABGB, which was considered to be less Romanistic, was left in force in the previously Austrian territories throughout the entire period of the Third Reich. Because the German commerce code relied on a different general private law, German rules of general civil law were introduced in Austria by means of a regulation wherever its commerce code relied on them, but they were limited in their application to commercial transactions. Until a recent reform of 2005 in which commercial law has undergone a radical reform in Austria (and a renaming, now labelling this code in a somewhat misleading way as Unternehmensgesetzbuch) the regulation remained in force. After World War II and the re-emergence of an independent Republic of Austria, the ABGB was kept in place as were many other laws (only laws based on Nazi ideology were removed).
8. 1945 until today
Since 1945 many important amendments have been made. Several reforms have been implemented through laws that now exist in addition to the ABGB, governing some issues that previously fell within the scope of application of the code. This was the case for many areas of labour law, tenancy law and tort law. Family law has also been amended on various occasions. Another important change was made with the introduction of a Consumer Protection Act in 1979. This law established a new Act in addition to the ABGB for various matters relating to consumers, and it also changed some provisions within the ABGB on sales contracts. Recent changes include the implementation of the Sale of Goods Directive and the above-mentioned reform of commercial law, which also had some repercussions on a number of provisions in the ABGB.
9. Current reform projects on tort law
A major reform project dealing with tort law is currently being prepared. The various developments in tort law, deriving from a body of court decisions and refinements of some doctrinal concepts, have become somewhat detached from the ABGB. It is widely assumed that the tort law provisions of the ABGB are therefore outdated. A committee chaired by Professor Helmut Koziol has produced a first draft. To a large degree it would implement rules drawn on leading court decisions, therefore in essence already familiar to legal practice. The draft also clarifies some uncertainties. It is principle-based and contains some broad formulations. Following some debate and academic criticism the draft has been revised. However, as a reaction to this draft a second group of academics who had not been asked to participate in the committee, led by Professors Rudolf Welser and Rudolf Reischauer, has, with some delay, produced a draft of its own. The ministry of justice is currently evaluating both proposals. Discussion on the reform has been lively and sometimes heated. The outcome of this project, at this time, seems uncertain.
10. Concluding remarks
It may seem surprising that the ABGB is still in force today. Its impressive lifespan has been facilitated by its capability to adapt. In contrast to the Prussian authors of the Allgemeines Landrecht für die Preußischen Staaten (ALR) and like the French authors of the Code civil, Zeiller and his co-authors refrained from details and casuistic rules. Zeiller very much relied on the ability of judges to decide special cases and emerging new problems with only general guidance by the code. As a result, many of the provisions of the ABGB are broad, some even principle-like. Changing circumstances could therefore, time and again, be accommodated without the intervention of the legislature. This usually came about gradually, in an evolutionary shift of small steps, rather than by way of abrupt changes, reflecting the courts’ reasonable and cautious use of the generous leeway they had been granted.
That courts were given so much room for independent decision making during an absolute monarchy is of historical interest. The confidence placed in the courts and the reliance on their reasonable use of discretion has proven to be a wise move. It has resulted in flexibility while at the same time establishing important principles. This, at first sight, may seem in conflict with the idea of a code. However, it rather reflects a reasonable understanding of what a code can do. The drafters of the ABGB seem to have had realistic expectations; they rejected the idea that a code could put down the law once and for good (contrary to what many at the time and perhaps some even today believe to be possible). In this assessment probably lies the source for the striking flexibility of the ABGB. As a consequence of this intentional flexibility, the code included bold rules on interpretation (§§ 6 ff ABGB) from the start. Those have remained unchanged and are still of fundamental importance today. A more detailed and technical code such as the BGB might not have survived for so long; certainly it would have been less accessible and not as concise.
By the end of 2011, the ABGB will have been in force for 200 years. What importance it will have in its third century might not depend on its own quality as much as on external developments. It currently seems entirely open whether European politics will opt for a major reform by moving towards a European Civil Code, or whether a more organic approach of smaller changes will be followed for harmonizing European private law. Exactly when the various academic harmonization projects in the area of private law will provide a solid basis for such a process also remains uncertain at this time. Given the pace of past and present developments, it seems likely that the ABGB may still be in place to celebrate its 250th anniversary.
Franz von Zeiller, Das natürliche Privatrecht (1802); Franz von Zeiller, Commentar über das allgemeine bürgerliche Gesetzbuch (1811–13); Joseph Unger, Die wissenschaftliche Behandlung des österreichischen gemeinen Privatrechts, Antrittsrede an der Prager Hochschule 1853 (1853); Joseph Unger, System des österreichischen Privatrechts (1856–9); Joseph Unger, ‘Zur Revision des Allgemeinen bürgerlichen Gesetzbuchs, Zeitschrift für das Privat- und öffentliche Recht der Gegenwart’ (1904) XXXI GrünhutsZ 389; Franz Klein, ‘Die Lebenskraft des Allgemeinen bürgerlichen Gesetzbuchs’ in Festschrift zur Jahrhundertfeier des Allgemeinen Bürgerlichen Gesetzbuchs (1911) 1; Armin Ehrenzweig, System des österreichischen allgemeinen Privatrechts I (1925); Josef Schey, ‘Einleitung’ in Heinrich Klang (ed), Kommentar zum ABGB I/1 (1st edn, 1933) 3; Josef Schey and Heinrich Klang, ‘Einleitung’ in Heinrich Klang (ed), Kommentar zum ABGB I/2 (2nd edn, 1964) 1; Franz Gschnitzer, Allgemeiner Teil des bürgerlichen Rechts (1966); Herbert Hausmaninger, The Austrian Legal System (2nd edn, 2000) 227–236; Jakob F Stagl, ‘Die Rezeption der Lehre vom Rechtsgeschäft in Österreich durch Joseph Unger’ (2007) 15 ZEuP 37.
Leopold Pfaff and Phillip Ritter von Harrasowsky, Der Codex Theresianus und seine Umarbeitungen I-V (1883-1886); Julius Ofner, Der Ur-Entwurf und die Beratungsprotokolle des Österreichischen Allgemeinen bürgerlichen Gesetzbuches I und II (1888, 1889); Kaiserliche Verordnung vom 19 März 1916, RGBl 69, über die dritte Teilnovelle zum ABGB, mit Materialien (1916) (including especially the report of the Upper House 123 ff, also published as minutes of the Upper House, 21st Session 1912); ABGB available <www.ris.bka.gv.at>.