General Part

From Max-EuP 2012

by Jan Peter Schmidt

1. Notion

The notion of a ‘general part’ is used here to describe the legislative technique of ‘factoring out’ the general rules of a code (codification) and placing them in front of the specific rules, thereby avoiding their constant repetition. The most famous—and most controversial—example of a general part is that of the Pandektensystem which claims to establish rules applicable to all areas of private law. However, general parts can also be found on a lower level of abstraction, for instance in the law of obligations or the law of contracts. What is more, the concept of a general part is not limited to the area of private law, but can also look upon a long tradition in criminal law. Related to the concept of a general part in legislation, but by no means to be confused with it, is the search for general principles of law in legal doctrine.

2. Origins and codification of the general part

The concept of a general part originates in the Law of Reason (natural law) and its typical method of generalization and abstraction, aiming thereby to arrange the law in strictly logical order. This method was later imitated by the German writers of the ius commune who from the beginning of the 19th century invariably introduced their textbooks with a general part (Pandektensystem). As it expresses an extraordinary striving for a systematic treatment of the law, the idea of a general part has always been regarded as an intrinsically ‘German’ idea.

It was with the Saxonian BGB (1863) that the general part first found its way from the textbooks into a civil code. It acquired worldwide fame with its codification in the Bürgerliches Gesetzbuch (BGB). Up to this day, however, only relatively few states have followed the idea of a general part for their civil code. Among these we find Japan (1898 Japanese law, influence of European private law); Brazil (1916 and 2002 (Latin America, influence of European private law); Greece (1940 Greek Civil Code); Poland (1964 Polish Civil Code); Portugal (1966), Russia (1996 Russian Civil Code); the Georgian Republic (1997) and Lithuania (2000). The majority of legal systems, however, mainly under the influence of the Swiss Civil Code (ZGB), deliberately limited the reception of the general part to the area of legal scholarship, codifying only the special parts of the Pandektensystem. Still, many of these codifications contain general parts on a lower level of abstraction, concerning, for example, the law of contracts (contract), the law of obligations or, as in the Burgerlijk Wetboek (BW), patrimonial law.

The idea of a general part has also found its way into the projects on the harmonization of European private law, ie the Principles of European Contract Law (PECL) and the Code Européen des Contrats (Avant-projet). The Draft Common Frame of Reference (DCFR) even makes repeated use of this technique. At first, with the general rules applying to the entire DCFR (Book I), then with the general rules on contracts and other juridical acts (Book II) (juridical act), and, finally, with the general rules on obligations (Book III).

3. The controversy over the value of a general part

Even in those legal systems that have codified it, the general part has never been exempt from criticism. In Germany, hostility towards it reached its peak under the regime of National Socialism: the general part was removed from curricula, and the planned ‘People’s Code’ (Volksgesetzbuch) intended to ban it from legislation as well. Nowadays the controversy over the general part has considerably subsided, but is still not completely settled.

Critics of the general part do not doubt the necessity of developing general doctrines and principles of private law (general principles of law). However, they believe that this task should be left to legal doctrine rather than legislation. The following arguments primarily refer to the general part of the civil code, but in general also apply to general parts on a lower level of abstraction.

a) Virtues and drawbacks of a general part

The foremost aim of a general part in a civil code is to minimize the number of provisions, as the ‘factoring out’ of general rules avoids the necessity of their constant repetition. With regard to textbooks and commentaries, an additional advantage of the general part is that general doctrinal considerations concerning different areas of the law can be linked to concrete provisions and are thus more easily found. Civil codes lacking a general part often try to achieve the same results by resorts to the technique of using far-reaching references. A rule that is apt to be generalized is first formulated for a specific context (eg contracts) and then, either directly or with the necessary modifications, extended to all other areas of law where it is to apply as well (eg unilateral juridical acts). Examples of this technique can be found in Art 7 of the Swiss Civil Code (ZGB), in Art 1324 of the Codice civile, in Art 3:59 of the Burgerlijk Wetboek (BW) or in Art 1:107 Principles of European Contract Law (PECL).

It is debatable which of these two techniques is to be preferred: advocates of the general part claim that it is more clearly arranged as the general rules are easy to recognize as such; besides, it forces the legislature to deal with the scope of a general rule more carefully, as it will apply as long as there is no explicit exception. Adherents of the reference technique, on the other hand, praise its flexibility and the greater caution it requires from the person applying the law. Related to this discussion is the argument that the general part contributes to the systematic unity and conceptual consistency of a code and helps to avoid gaps and undesired differentiations. Critics, again, perceive this characteristic as a downside: a general part might create the false impression of the code being self-contained and might tempt judges to solve cases by conceptual deductions rather than the careful study of the factual aspects. It shows that underlying the discussion on the merits of a general part are often different views on the values and dangers of systematic thinking in law.

Finally, the general part is criticized for rendering the comprehension of a code extremely difficult for someone not specifically trained in abstract legal thinking. Indeed, as the law is not presented from the perspective of concrete situations of social reality, but under the auspices of formal legal structures, even the solution of simple cases usually demands the consultation of provisions spread all over the code. The high level of abstraction of a general part and the difficulties resulting from it should, however, not be overstated. For, as has been shown above, codes without a general part often work with complicated references and also employ quite abstract technical terms (such as ‘obligation’, for instance) which is why they are usually just as inaccessible to anyone but the trained lawyer.

b) The content of a general part

The question of how useful a general part is cannot be answered conclusionally without considering what its content should be. The pandectist literature did not provide a uniform consent in this respect. From a logical point of view, a general part should comprise the following elements: legal subjects, legal objects, the creation of rights and their exercise.

The general part of the Bürgerliches Gesetzbuch (BGB), in any case, is widely considered a failure, since many of its provisions prove to not be general rules at all and have only been put there for lack of a better idea of where to place them. This can especially be said about the provisions on associations and foundations (§§ 54–88 BGB). The same applies to the definitions of ‘consumer’ (consumers and consumer protection law) and ‘business’ (§§ 13, 14 BGB), since these concepts only find application in the law of obligations. Not even the positioning of the rules on natural persons is free from criticism: some authors call for the creation of a separate book on the law of persons, following the model of the Swiss Civil Code (ZGB). This criticism is justified at least insofar as the personality rights fail to be fully regulated by the general part of the BGB.

The part on ‘things’ (§§ 90 ff BGB), according to general opinion, does not really belong to the general part either, as it only deals with certain kinds of legal objects. It would therefore be far better placed in Book Three on the law of property. As regards the rules on prescription, their positioning in the general part is not undisputed either, but can be justified by their scope of application: §§ 194 ff BGB are not limited to claims under the law of obligations, but also apply to claims under property, family and succession law.

In contrast, the rules on juridical acts are regarded as a core section or even the pièce de résistance (Ernst Zitelmann) of the general part, as they claim to regulate acts of private autonomy in all areas of private law. Still, critics say that the general character of this section is merely a matter of appearance, as especially in the areas of family law (family) and succession law the BGB is forced to provide numerous exceptions (regarding, for instance, the rules on invalidity and representation).

Finally, criticism is levelled at the general part of the BGB for the fact that it fails to contain some doctrines of fundamental importance. This is true particularly for the general maxims on how the law is to be interpreted (interpretation of statutes, history of) and on how rights are to be exercised (abuse of law). Frequently cited as a model in this respect are the introductions to the Allgemeines Landrecht für die Preußischen Staaten (ALR) or the Swiss Civil Code (ZGB).

General parts in the civil codes of other countries are structured in a way that is similar to that of the general part of the BGB, while still pursuing their own path in some respects. The Russian Civil Code and the Civil Code of the Georgian Republic, for example, contain introductions with general principles of private law. The general parts of the Portuguese (1966) and the Brazilian Civil Codes (2002) deal with ‘legal objects’ instead of ‘things’ and leave the rules on the conclusion of contracts (contract) to the law of obligations. In the general part of the Greek Civil Code a section on ‘legal objects’ or ‘things’ is completely absent. The first book of the DCFR is not only used to establish general provisions, but also to lay down numerous definitions. Whether this approach is advisable is not a question of the general part but of legislative technique in general.

4. Conclusion and prospects

If a legislature does not want to get lost itself in endless casuistry and incessant repetitions, it cannot do without a certain degree of abstraction and generalization. This is why civil codes that lack a general part in the classical sense will contain at least some hidden or shortened general parts, be it in the form of far-reaching references or in the form of introductory provisions. The benefits of a general part are, in any case, widely recognized on a lower level of abstraction, eg with regard to the law of obligations. In view of that, the controversy over the general part of a civil code should not be raised to a level of ideological principle and be seen as a clash between legal formalism and legal naturalism, but should rather be regarded principally as a matter of a technical nature.

These reflections equally refer to the advisability of a general part in the European context, whether for the law of contracts, the law of obligations, patrimonial law or for private law as a whole. If, as a result of thorough academic research, general rules for certain legal areas can be developed, placing them in a general part at the beginning of a code may be considered. However, as long as the necessary preliminary work has not yet been done, it is premature to ask whether a general part is advisable for a European Civil Code or not.

Literature

Ernst Zitelmann, ‘Der Wert eines “allgemeinen Teils” für das bürgerliche Recht’ (1906) 33 GrünhutsZ 1; Philipp Heck, ‘Der Allgemeine Teil des Privatrechts. Ein Wort der Verteidigung’ (1941) 146 AcP 1; Wolfram Müller-Freienfels, ‘Partie Générale du BGB’ in Michel Fromont and Alfred Rieg (eds), Introduction au droit allemand—République Fédérale, vol 3, Droit Privé (1991) 15; Tony Weir (tr), Franz Wieacker, A History of Private Law in Europe (1995) 385 ff; Franz Bydlinski, System und Prinzipien des Privatrechts (1996) 117 ff; Tony Weir (tr), Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (3rd edn, 1998) 144 ff; Mathias Schmoeckel, ‘Vor § 1. Der Allgemeine Teil in der Ordnung des BGB’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol 1 (2003) 123; Claus-Wilhelm Canaris, ‘Funções de uma parte geral de um Código civil e limites da sua prestabilidade’ in Faculdade de direito da Universidade de Coimbra, Comemorações dos 35 anos do Código civil e dos 25 anos da reforma de 1977, vol 2 (2006) 23; John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition (3rd edn, 2007) 68 ff; Jan Peter Schmidt, Zivilrechtskodifikation in Brasilien. Strukturfragen und Regelungsprobleme in historisch-vergleichender Perspektive (2009) 299 ff.

Retrieved from General Part – Max-EuP 2012 on 29 June 2022.

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