Bürgerliches Gesetzbuch (BGB)
1. Political background
The unification of private law on a national level had been one of the main demands of the liberal segment of the bourgeoisie since the Napoleonic Wars. However, with the exceptions of the Bills of Exchange Act of 1849 and the Commercial Code in 1861 (Allgemeines Deutsches Handelsgesetzbuch, ADHGB), it was not achieved before Germany was unified as a nation state with the re-establishment of the Reich in 1871.
Legal scholars compensated for the lack of a civil code by installing a common legal curriculum based on a ‘modernized’ Roman law. The claim of political autonomy from the individual German states was underpinned by declaring that legal scholarship had evolved to a strictly ‘scientific’ enterprise. Before the BGB came into force on 1 January 1900, legal unification was also aided through judge-made law created by the Reichsoberhandelsgericht (ROHG) (from 1869) and the Reichsgericht (from 1879) (Reichsoberhandelsgericht with Reichsgericht).
At first, the German constitution of 1871 had granted the newly created Reich legislative competence only in matters of commercial law and the law of obligations, but not for all of private law (see Art 4 No 13). The Federal Council (Bundesrat) prioritized unifying procedural law and criminal law because it expected serious difficulties concerning succession law and family law. A political dispute about whether to opt for a comprehensive codification or for individual statutes was not overcome until 1873. Parliament finally bestowed full legislative competence for all matters of private law on the Reich by amending the constitution via the so-called Lex Miquel-Lasker (RGBl. 1873, 379).
2. Legal unification vs law reform: first drafting commission
The Federal Council established a Preliminary Commission to discuss a general plan and method for the drafting process on 28 February 1874, thereby barring political parties from participation. Members appointed to that Preliminary Commission were Levin Goldschmidt, Franz Philipp von Kübel, Anton von Weber, Ludwig Ritter von Neumayr and Hermann von Schelling. Their written report, issued on 15 April 1874, was accepted by the Federal Council with no amendments and set forth the duties of the first drafting commission as follows: (1) to generate a full account of private law as it stood throughout the Reich, evaluating its ‘appropriateness, inner truth, and consistency’; (2) critically to examine any departures from the ius commune; and (3) specifically to pay attention to the appropriate systematic structure. The Preliminary Commission was thus primarily concerned with legal technique and with determining the ius commune as the foundation of the future code. The drafting process was dominated by a rivalry of the individual states, and the appointments to the first drafting commission were made accordingly: Reinhold Johow, Gottlieb Planck and Karl Kurlbaum (all three from Prussia), Albert Gebhard (Baden), Franz Philipp von Kübel (Württemberg), Gottfried von Schmitt (Bavaria), Gustav Derscheid (Rhine Province), Anton von Weber (Saxony). Furthermore, there were two well-known scholars, Paul von Roth and Bernhard Windscheid, representing the ‘Germanistic’ and the ‘Romanistic’ branches of the historical school, respectively. Windscheid, however, resigned in 1883. The commission was chaired by Eduard Pape, chief justice of the Reichsoberhandelsgericht (ROHG). Proceedings were based on individual drafts divided according to the pandectist system (Pandektensystem), lead responsibility for the general part being assumed by Gebhard, Law of Obligations by von Kübel, Property Law by Johow, Family Law by Planck and Law of Succession by von Schmitt. Since the draft on the law of obligations remained unfinished because von Kübel passed away in 1884, a draft from an older codification project done at Dresden in 1866 was chosen because von Kübel had played a leading role in it. From 1881 onwards the commission discussed the drafts, with Pape exercising decisive influence and Windscheid a little less than is usually assumed today. The First Draft was published in spring 1888 and was accompanied by the Motive, which were not a transcript of the proceedings but a commentary assembled by commission aides. Since the commission did not go over the Motive in detail, they are of questionable authority.
3. Contemporary criticism of the First Draft
The First Commission followed its instructions closely and did not attempt to reform the law. Its draft was strongly based on pandectist traditions and took account of a considerable amount of previous liberal-minded state legislation, such as Prussian laws enacted under the minister of justice Adolph Leonhardt since 1868. The result was a decisive bias towards private autonomy (freedom of contract). Political circumstances, however, had changed in the late 1870s. A series of economic crises had led the administration under Bismarck to embrace a new policy of state intervention in social matters in 1878 and 1879. Many of the over 700 critical statements on the First Draft that were collected by the Imperial Ministry of Justice focused on the dominance of laissez-faire concepts. The critique was led by Otto von Gierke, who famously demanded that (at least) ‘a drop of socialist oil’ be added to the draft, thus reinforcing the perception of Roman law, as being not responsive to social needs; a perception current especially among economists since the 1850s. The draft was also criticized as being too technical, complex and abstract. The claim for a ‘popular’ law was not new, but resonated now because it mirrored a semantic change. Before 1871, national private law had to be construed without a nation state and therefore was put under the protective veil provided by a purportedly autonomous legal ‘science’. Now, legal arguments were deconstructed as political arguments redressed in legalese. While legal ‘science’ had been regarded as a means of overcoming the uncertainty associated with the ius commune, lawyers were now afraid of what manner of ‘prison cell’ (as it was termed) a codification would turn out to be. Several lobby groups voiced their opinions, among them Prussian land owners, several commercial chambers and industry interest groups. Additionally the beginning feminist movement opposed the social conservatism of Planck’s family law draft. Yet none of these groups gained considerable influence due to internal disagreements.
Planck, in particular, defended the first draft in public. A staunch social conservative, he refuted any criticism of the proposed family law. Regarding contract and property law, he pointed out that a libertarian civil code did not necessarily mean denying protection to weaker members of society. In his view, it was impossible to embed a mechanism in a civil code that would reliably identify and correct imbalances of power, and he instead recommended supplemental legal provisions outside of the civil code which were tailored to tackle specific problems. A balance between individual and collective interests, to be struck within the code itself, however, was favoured by Otto von Gierke, as leading opponent of the First Draft. Essentially this antagonism symbolized a political conflict about the basic rules of German society and their being laid down in a private law codification as surrogate for a constitution.
4. The Second Draft and its enactment
Despite all the criticism, most parties agreed that the First Draft was suitable as a foundation for further discussion. The Imperial Ministry of Justice now took control of the drafting process and exerted decisive influence on the appointment process for the Second Commission as well as on form and substance of the Second Draft. Among the 25 members of the Second Commission both the ministry and the Federal Government had representatives as did the big political parties (excluding the Social Democrats), large land owners, commerce, the Christian churches and the Jews. Economic and legal experts were included as well. Chairmanship was strongly exercised by Planck, further influential players were the three imperial representatives Alexander Achilles, Karl Heinrich Börner and Hermann Struckmann as well as Karl Jacubezky, who acted on behalf of the Bavarian government. Robert Bosse, a former social policy expert within the imperial administration, was appointed to prevent a neglect of social issues.
A plethora of protective provisions were added to the draft, among them additional formal requirements, rules intended to curb abuse of law (§§ 226, 826, 1353(2), 1354(2) BGB), as well as a provision (later: § 618 BGB) that cleared the way for basic employment protection and occupational health and safety measures. Public pressure reached an intensity that even led to the abolition of a hitherto fundamental principle of contract law: tenants could no longer be evicted by the new owner of a property (§ 571 BGB), although the prevailing practice of concluding short-term leases and establishing extraordinary cancellation rights significantly reduced the impact of this reform. Furthermore, the Second Commission tried and tested methods for the judicial review of individual transactional fairness by incorporating a variety of elastic and potentially far-reaching controlling devices, such as boni mores (illegality of contracts) or bona fides (good faith). The commission also embraced the continuing development of the law by legal scholarship. Not everything was put into the codification, however, eg the hire-purchase business was regulated in a special statute in 1894. The Imperial Ministry of Justice blocked any proposals it deemed as being politically too controversial, fearing that they might endanger the codification project itself.
In autumn 1895, the revised Second Draft passed the first reading in the Federal Council, with some discussion on notoriously contested matters such as the law of associations and family law, and moved on to Parliament in January 1896. After two days of general debate, the Reichstag assigned the resolution of the remaining individual questions to its XIIth Committee. This group of 21 members of Parliament was dominated by the conservative party Zentrum (six members). In the end, the Zentrum and the Social Democrats were particularly successful in getting their demands recognized, especially in the law of associations, labour law and family law. After a final compromise being struck between Prussia, the National Liberals, the Zentrum, and the Reichspartei, the Reichstag accepted the draft on 1 July 1896, with the still unsatisfied Social Democrats voting against it. The Federal Council agreed and the code was promulgated on 24 August 1896 (RGBl 1896, 195). The Commercial Code and regulations pertaining to the organization of courts, the land register and certain procedural matters were adapted 1897–98. Finally, the BGB entered into force on 1 January 1900.
5. Structure and basic decisions
The BGB’s structure follows the Pandektensystem, a scheme devised by Gustav Hugo and Georg Arnold Heise that had gained universal acceptance in text books during the 19th century. The general part was divided into three subparts, following the old ‘institutional system’ (Institutionensystem), dealing with persons, objects and juridical acts. As a key concept, the theory of the juridical act laid emphasis on private autonomy (freedom of contract), accompanied by the symbolic emphasis of general legal capacity in § 1. Contract law had been placed ahead of property law already by the First Commission, thus deviating from the Pandectist scheme and symbolizing a perceptual and functional change that had occurred after 1800. At the beginning of the century, the protection of property rights had been central to an essentially agrarian and static society; also, it underlined the function of private law as the surrogate for a constitution. In an industrialized market economy, however, transactions were now seen as central whereas property law simply guaranteed creditworthiness.
Regarding foundations, associations, and non-profit organizations, prolonged political haggling finally resulted in freedom of association being granted. The central role of good faith in the law of contract emphasized both fidelity to individual contractual agreements as well as their flexible scrutiny in court. In the law of delict or tort (law of torts/delict, general and lex Aquilia) it was decided not to follow the French concept of one ‘big’ general provision, as had at first been envisaged, and opted for three ‘smaller’ provisions instead (§§ 823(1), (2), 826; thus, liability for pure economic loss was rejected for cases of negligent behaviour). Vicarious liability was limited outside of contractual relations (§ 831 BGB). Land law centred around the two main principles of publicity and the reliability of securities. Regarding movables, the BGB adopted the acquisition a non domino (acquisition of ownership from a non-owner) (as already implemented in the Allgemeines Deutsches Handelsgesetzbuch (ADHGB)) and set up strict requirements for usucaption. In family law, social conservatism succeeded in establishing strict requirements for divorce and broadening the discrimination of illegitimate children. The position of women was marginally improved, however. The law of succession saw an increased freedom of testation. The introduction of many of the reforms was softened by generous transitional provisions and statutory exceptions in the introductory law to the BGB (EGBGB).
6. An unloved codification
The BGB remained in force largely unmodified—with the notable exception of family law—throughout the time of the Empire, the Weimar Republic, National Socialism, the Federal Republic, and the GDR (until 1976). Although this seems to be a sure proof of its adaptability, the code’s image remained fixed during the 20th century: it was denounced as conceptualist, libertarian, unsocial and individualistic. The economic and social upheavals after 1918, in particular, led to an irrational and nationalist climate disinclined towards a rational, liberal civil code. The economic crisis also affected the formerly stabilizing bourgeoisie and therefore broadened the opposition to the BGB. Even before World War I, criticism of the purportedly ‘un-Germanic’ and ‘Roman’ codification had taken on decisively anti-Semitic undertones, overstating purported ‘Semitic influences’ in the Byzantine empire, where the ancient Roman law had been compiled under the reign of Justinian, thus effectively denoting certain features of Roman law as ‘Jewish’. Accordingly, item 19 of the Nazi party manifesto of 1920 demanded replacing Roman law with a kind of ‘Germanic common law’ and thus provided the starting point for increasingly severe attacks on the BGB in the following two decades. The sprawling Nazi reform project eventually failed, however. After 1945, it was particularly Franz Wieacker who successfully perpetuated the image of an ‘unsocial’ and ‘formalistic’ BGB and labelled the code a ‘late born child of pandectism and the liberalist movement since 1848’ that had been devised to fortify a social order unfairly favouring ‘the affluent bourgeoisie’. The BGB remained unloved throughout the 20th century, and it is not surprising that the centennial celebrations of 1996/ 2000 were rather low key.
Soon after the birth of the Federal Republic 1949, the courts extended certain fundamental rights guaranteed by the new constitution to citizens in respect of the state to relations between citizens (discrimination (contract law)), thereby taking command of the development of private law and its ‘social’ dimension, as well as rendering criticism of the BGB increasingly practically irrelevant. From the 1980s onwards, a new generation of legal historians set out to correct many of the distorted perceptions that often unconsciously projected contemporary political and legal conflicts into the past. The BGB had not been designed to serve the interests of the propertied class, but was inspired by the idea of equal freedom under the law for all. The insistence on freedom of contract and the enactment of protective devices by means of legislation outside of the codification was merely a decision for in dubio pro libertate, but it was never intended as a foundation for unrestrained laissez-faire. Today, it is noted that eminent figures such as Max Weber or Gottlieb Planck (a member of both drafting commissions) had put forward good reasons why a codification should be based on the legal equality of all persons as opposed to being built on a foundation of countless particular interests.
Moreover, many commonly held views on the BGB have proven to be grossly overstated. A strictly non-interventionist, almost libertarian glorification of unrestricted participation on the market was a conception advocated by neither the pandectists nor by the draftsmen of the BGB. In a time without constitutionally guaranteed fundamental rights the dominant question was how to secure individual freedom against the state. Freedom was primarily seen as a chance, not as a risk. Nobody turned a blind eye to potential abuse. That is why good faith was strengthened as the device judges should use to examine the fairness of a specific transaction. And when the Second Commission provided ample manoeuvring room for legal scholarship and the courts, it did not create something new, but only stated what had already been taken for granted long before 1900. Indeed, the judiciary continued to use its leeway self-confidently immediately subsequent to the code’s entering into force. Legal scholars overlooked this fact for a long time, erroneously claiming the early years of the Weimar Republic as the time when the German activist judge took charge of the development of private law. Equally forgotten was the Second Commission’s conception of an interplay between a liberal codification and special legislation, correcting the former as well as the fact that the Second Commission had embraced a variety of new protective devices. Even though the BGB had not brought about a radical change in social policy—if it had tried, the project might have failed politically—it is fair to say that the Second Commission pioneered the transition to a new period of a more interventionist policy. It is therefore not wrong to call the BGB ‘the first modern codification influenced by social policy’ (Werner Schubert).
7. The BGB and the development of private law during the 20th century
Whereas the first three decades had only seen modifications to 29 sections of the BGB, the Nazi state (1933–45) modified over 300 of them, mainly in family law and the law of succession. Today, family law is almost unrecognizable compared to the original 4th book of the BGB. Throughout the 20th century, freedom of contract was confronted with far-reaching state interventionism. Labour law was taken out of the code and dealt with separately, leaving the BGB with a stump of little practical relevance. After 1945, some of the special statutes used to restrain the tenancy law of the BGB were re-integrated into the code by amending it. Consumer protection was substantially increased, not least due to EU legislation, and the courts developed a test for the fairness of standard contract terms that were adopted by the legislative in a special act of 1976. Both the Standard Contract Terms Act and most of the special consumer protection legislation were integrated into the BGB itself as part of a major reform of the law of obligations in 2001.
National Socialism had fostered the rise of a new style of jurisprudence essentially proclaiming that the existing rules of a legal order had to be re-interpreted in accordance with a few higher, and not necessarily juridical, concepts—in the case of the Third Reich, a kind of Germanic-racist ideal of life (völkisch). In private law, German lawyers used the general clauses of the BGB (§§ 138, 157, 242, 826 BGB) to accomplish this goal. After 1945, the Nazi elements were replaced with different, democratic ideals, with Christian influences mixed in. The jurisprudential style, structurally unchanged, was relabelled as Wertungsjurisprudenz (jurisprudence based on values) and provided the backdrop for the re-orientation of the BGB towards the new constitution (discrimination (contract law)) and other leading principles (eg the protection of legitimate expectations). Since then, the older deductive reasoning firmly rooted within doctrinal principles has increasingly given way to a method of balancing the relevant interests in the case at hand, thereby evading the stabilizing boundaries of a hierarchically structured system of rules which German law is usually known for. In fact, German private law today increasingly consists of judge-made law.
Franz Wieacker, Das Sozialmodell der klassischen Privatrechtsgesetzbücher und die Entwicklung der modernen Gesellschaft (1953); Rainer Schröder, Abschaffung oder Reform des Erbrechts (1981); Werner Schubert, ‘Das bürgerliche Gesetzbuch von 1896’ in Herbert Hofmeister (ed), Kodifikation als Mittel der Politik (1986) 11; Michael John, Politics and the Law in Late Nineteenth-Century Germany (1989); Hans Schulte-Nölke, Das Reichsjustizamt und die Entstehung des Bürgerlichen Gesetzbuches (1995); Thomas Vormbaum (ed), Die Sozialdemokratie und die Entstehung des Bürgerlichen Gesetzbuches (2nd edn, 1997); Dieter Schwab, ‘Das BGB und seine Kritiker’ (2000) Zeitschrift für Neuere Rechtsgeschichte 325; Tilman Repgen, Die soziale Aufgabe des Privatrechts (2001); Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol I (2003), vol II/1, vol II/2 (2007); Reinhard Zimmermann, The New German Law of Obligations. Historical and Comparative Perspectives (2005); Rüdiger Hansel, Jurisprudenz und Nationalökonomie (2006); Hans-Peter Haferkamp, ‘The Science of Private Law and the State in Nineteenth Century Germany’ (2008) 56 Am J Comp L 667.
Motive zu dem Entwurf eines BGB für das deutsche Reich, 6 vol (1888); Protokolle der Kommission für die zweite Lesung des Entwurfs des BGB, 6 vol (1897/99); Zusammenstellung der gutachtlichen Äußerungen zu dem Entwurf eines BGB, 6 vol (1890/1891); Zusammenstellung der Äußerungen der Bundesregierung zu dem Entwurf eine BGB (1891); Georg Maas, Bibliographie des Bürgerlichen Rechts (1899); Stenographische Berichte über die Verhandlungen des Reichstags, IXth Legislaturperiode, IVth Session (1895/1897), 704 ff, 2716 ff, 3059 ff (1896); Benno Mugdan, Die gesammten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, 5 vol (1899); Georg Maas, Bibliographie der amtlichen Materialien zum BGB (1897); Werner Schubert, Horst Heinrich Jakobs, Die Beratung des BGB in systematischer Zusammenstellung der unveröffentlichten Quellen (1978); Werner Schubert (ed), Die Vorlagen der Redaktoren für die erste Kommission zur Ausarbeitung des Entwurfs eines BGB (1980-1986); all changes 1900-2005 in Tilman Repgen, Hans Schulte-Nölke, Hans-Wolfgang Strätz, BGB-Synopse 1896–2005 (2005).