Juridical Act

From Max-EuP 2012

by Jan Peter Schmidt

1. Terminology

The term ‘juridical act’ is used here as the English translation for the German notion of Rechtsgeschäft. While this concept plays a key role in many civil law jurisdictions, it has never gained much importance, if any, in the common law world. For this reason, a generally accepted English equivalent for the term Rechtsgeschäft has not yet been established. Legal writers offer a whole range of translation proposals: ‘juridical act’, ‘legal act’, ‘juristic act’, ‘act in the law’ or ‘legal transaction’. As the German word Rechtsgeschäft is a term of art in the purest sense, t seems hard to decide which English expression is preferable. The reason why the term ‘juridical act’ is chosen here is that it has been employed in the Draft Common Frame of Reference (DCFR).

Time and again, attempts have been made to provide a definition of the notion of the juridical act, both in legislation and in legal writing. Regardless of minor differences, there is a consensus that the core element of a juridical act is a declaration by one or more parties intended to create a legal effect (see, for instance, the definition in Art II.-1:101(2) DCFR). Whether this effect actually takes place or not, depends on the legal system. But where it takes place, it does so in recognition of the actor’s intention (often in combination with further requirements, such as the registration of a transaction in the land register). Hence, the juridical act is the legal instrument which puts into effect the principle of private autonomy, ie the faculty to determine one’s own legal relationships (freedom of contract, freedom of testation). The types of juridical acts which a legal system provides for this aim are manifold: contracts under the law of obligations, unilateral declarations with constitutive effects (such as a notice of avoidance or termination of a contract), transactions concerning real rights (such as a conveyance), the act of marriage, marital agreements, the making of a will, the incorporation of a company, etc. Juridical acts can be unilateral, bilateral and multilateral, depending on whether they contain declarations of intention of one, two or more parties.

According to classical doctrine, juridical acts compose a subcategory of legal acts in the wider sense. The difference between juridical acts and other legal acts is that the latter cause effects regardless of the actor’s intention. Under German law, for example, a demand for payment (Mahnung, § 284 Bürgerliches Gesetzbuch (BGB)) is not a juridical act, as its legal consequence, ie the placing of the debtor in default (Verzug, § 286 BGB), does not depend on the existence of a corresponding intention on the part of the person making the demand. The distinction between juridical acts and other legal acts is practically relevant in light of the fact that most legal systems only provide rules for juridical acts since they represent the most prominent form of legally relevant human (inter)action. The question whether, and to what extent, these rules can be applied to other legal acts by analogy (concerning, for instance, the requirement of capacity), then needs to be answered by courts and legal academia.

2. Origin

The doctrine of the juridical act cannot be derived from Roman law, which used the terms actus, negotium and declaratio voluntatis only in a non-technical manner, but is a creation of 18th and 19th-century German legal scholarship. Inspired by the law of reason’s method of abstraction and generalization (natural law), writers on the ius commune such as Daniel Nettelbladt began to systematize all forms of human action that are legally relevant. Those actions that are directly intended to create legal effects soon became an important topic in the general part of private law. In legislation this development found its first expression in the Allgemeines Landrecht für die Preußischen Staaten (ALR), which dedicated the Fourth Title of its First Part to the ‘Declarations of Intention’ (Willenserklärungen). The decisive scientific refinement of the doctrine of juridical act was provided by Friedrich Carl von Savigny (historical school) in vol III of his System des heutigen Römischen Rechts (1840). His treatise, also thanks to its translation into other languages, became highly influential throughout the world, and essential parts of it are still regarded as relevant today.

3. Core issues of the doctrine of the juridical act in German legal writing

The doctrine of the juridical act addresses the same problems as do the doctrines covering the specific types of juridical acts, eg contracts or wills, it only discusses them on a higher level of abstraction. Hence, in legal systems where this doctrine is not known or used, questions such as the formation, validity and interpretation of juridical acts are usually treated within the framework of general contract law doctrine (invalidity; interpretation of contracts).

Ever since the mid-19th century, German legal scholarship has been engaged in an intensive debate on why juridical acts are enforceable. According to Savigny’s will-theory, the basis for the validity of a juridical act is the intention of the person making the declaration. Hence, wherever this intention was lacking or deficiently expressed, the person cannot be bound. It is not surprising that this point of view soon met with sharp criticism, as it seemed to put in jeopardy legal certainty and the functioning of commercial dealings. As a counterpart, the so-called theory of declaration was developed: accordingly, the enforceability of a juridical act does not only rest on the will of the person making the declaration, but also or even predominantly on the reliance the addressee has reasonably put into it. The discussion is highly relevant for the validity and interpretation of juridical acts. The Bürgerliches Gesetzbuch (BGB) made an attempt to reconcile the two opposed points of view: a juridical act that is based on mistake, for instance, is regarded as valid, but may be avoided under certain conditions with the consequence of an obligation to pay damages to the other party (§§ 119 ff BGB).

In the first half of the 20th century, German legal doctrine tried to move away even further from the will-theory in order to deal with new phenomena of mass society. According to the doctrine of ‘factual contracts’ (faktische Vertragsverhältnisse), a declaration of intention was no longer essential for the performance of a juridical act; instead, it could also emanate from specific conduct, for instance, the use of a public transport device when no individual control for admission was taking place. An important practical consequence was that the rules on capacity and mistake would no longer apply to these situations. Although the doctrine of ‘factual contracts’ found its way even into some decisions of the German Federal Supreme Court, sharp criticism in legal writing, which declared the doctrine to be incompatible with the principle of self-determination, led to its abandonment. Cases such as those just mentioned are now resolved by interpreting the conduct as a tacit declaration of intention, or, where a person is lacking capacity, via the rules on delict/tort (law of torts/delict, general and lex Aquilia) or unjustified enrichment.

Related to the developments just described is the debate whether the doctrine of the juridical act can accommodate standard contract terms in a satisfactory manner. While important writers have argued for the necessity of an autonomous regime, nowadays the opinion prevails that the basis for the validity of standard contract terms is the common intention of the parties. Still, modifications of the general rules on juridical acts are deemed necessary, regarding, for instance, the prerequisites for the inclusion of the terms or the consequences of partial invalidity.

4. The doctrine of the juridical act in the European legal systems

When examining the role of the concept of the juridical act in the European legal systems, it is important strictly to distinguish legislation from legal scholarship. As regards legislation, two basic models can be juxtaposed: the first uses the notion of the juridical act as a ‘peg’ for the rules concerning the exercise of private autonomy (freedom of contract, freedom of testation). These rules can usually be found in the general part of a civil code and are thus applicable—unless provided otherwise—to all types of juridical acts, ie contracts, conveyances, wills, etc. This model was implemented in the Bürgerliches Gesetzbuch (BGB) and in the other civil codes which adhered to the Pandektensystem, such as the Greek Civil Code, the Polish Civil Code, the Portuguese Civil Code (1966), the Russian Civil Code or the Lithuanian Civil Code (2000). Similar is the technique of the Burgerlijk Wetboek (BW), even if its rules concerning the rechtshandeling apply directly only to patrimonial law (according to Art 3:59 BW, however, outside patrimonial law these rules apply by analogy).

The second model refrains completely from using the notion of the juridical act as an abstract category and only provides rules for its specific manifestations, most extensively for contracts under the law of obligations. This method has been employed, inter alia, in the Code civil and the legal systems which were significantly influenced by it (Código civil) and furthermore in the Swiss Civil Code (ZGB) and the Codice civile. In order to avoid legislative gaps and constant repetitions regarding other types of juridical acts, the rules concerning contracts are often extended by far-reaching reference-provisions (general part). Classical examples are Art 7 Swiss Civil Code and Art 1324 Codice civile; the latter however restricts the reference to ‘unilateral acts inter vivos relating to patrimonial law’.

As regards legal scholarship, the differences between the European legal systems are much smaller because even in countries where the juridical act has not been employed in legislation, it is often used as a central concept in legal doctrine. Italian legal science with its vast literature on the negozio giuridico appears to be the most prominent example. Via the Italian authors, the doctrine of juridical act found its way also into Spanish legal writing (Código civil). In France, the reception of the doctrine of juridical act is due particularly to the works of Raymond Saleilles on German law. The various attempts to introduce the corresponding notion of acte juridique also into the Code civil show how firmly this doctrine is now rooted in French legal scholarship. In Austria, it was Joseph Unger who paved the way for a comprehensive reception of the doctrine of juridical act in the second half of the 19th century. As a result, in the course of the code’s revision of 1914–16, the term Rechtsgeschäft was introduced also into the Allgemeines Bürgerliches Gesetzbuch (ABGB) (see §§ 859 ff, which, however, apply only to the law of obligations).

Attempts to establish the juridical act as a central category of private law have even been made in the common law, mostly by writers on jurisprudence. As already stated in the beginning of this entry, these efforts have not been very successful. In view of the rather unsystematic approach of English legal scholarship this does not come as a surprise: a necessity for an abstract category such as the juridical act can only be felt where systematic intersections between different areas of law are analysed. Equally limited is the importance of the doctrine of juridical act in the Nordic legal family (Scandinavia, harmonization of law) where it does not seem to match very well with the pragmatic approach to law that generally predominates.

5. The notion of juridical act in harmonization of European private law projects

The Principles of European Contract Law (PECL) have deliberately refrained from employing the notion of the juridical act: their provisions apply to contracts and are extended by analogy to ‘other statements and conduct indicating intention’ (Art 1:107 PECL). The solution of the Code Européen des Contrats (Avant-projet) (Art 4) is very similar.

In the DCFR, on the other hand, the juridical act has been adopted as a key concept in order to provide a complete regulation not only for contracts, but also for other types of juridical acts. The DCFR’s claim to be a restatement of the European legal systems is at least partly justified in this respect, in view of the ample dissemination of the doctrine of the juridical act in countries of the civil law tradition. The way the DCFR has implemented the notion of the juridical act, however, seems to be rather inconsistent. On the one hand—quite superfluously—contracts are named separately in most of the rules regarding juridical acts (‘contracts and other juridical acts’). The draftsmen of the DCFR thus obviously aimed at making the provisions more explicit for readers who are less familiar with the notion of the juridical act, but as a result they read rather clumsily. On the other hand, the DCFR at some points, for instance in the chapters on invalidity and interpretation (interpretation of contracts), ‘falls back’ into the reference technique, ie its rules are first developed for contracts and then extended to other juridical acts with the ‘necessary’ or ‘appropriate adaptations’ (see Art II.-7:101 (3), Art II.-8:202 DCFR). The DCFR thus represents a somewhat unfortunate combination of the two basic models described above.

6. The controversy about the notion of the juridical act

Once regarded as the ‘proudest achievement of civil law doctrine’ (John Henry Merryman), the notion of the juridical act has, especially during the last decades, been fundamentally called into question. The discussion embraces doctrinal, ideological and practical considerations and, in a way, correlates to the debate on the merits of a general part in modern civil codes. The many critical reactions to the adoption of the doctrine of the juridical act in the DCFR (Common Frame of Reference) is probably representative of the sceptical attitude that nowadays prevails among European and especially German lawyers.

On the doctrinal level, the concept of the juridical act is criticized for being too abstract to be useful: the different types of juridical acts are said to have too little in common to be reasonably assembled in one general category. The person applying the law might be misled to think that arguments of systematic coherency are more important than a careful study of the factual aspects and the interests involved in a case. This criticism must not be taken lightly: the concrete types of juridical acts indeed need to receive all the individual treatment they deserve. However, the notion of ‘contract’ could equally be criticized for not paying sufficient attention to the specific types of contract that often have very little to do with one another. The dangers of abstraction and systematization, in any event, do not seriously challenge the expository and systematic value of the concept of the juridical act: it is an indispensable tool for capturing the numerous manifestations of private autonomy and securing their coherent handling. The fact that many European legal systems have embraced the notion of the juridical act even without having it in their civil codes confirms the assumption that in the long run a legal science which aims for systematization and coherence cannot ‘close its eyes’ before this doctrine.

Particularly by parts of the Italian doctrine, the notion of the juridical act has also been challenged for ideological reasons: by not distinguishing any longer between the persons involved in the various transactions or the content of these transactions, the doctrine of the juridical act constituted the supreme expression of a legal formalism preventing the inclusion of social values and promoting an unconstrained individualism. This line of argument, however, overlooks the fact that the notion of juridical act is merely a tool of legislative technique. Of course it can only be of use in a legal system which guarantees its citizens at least a minimum of private autonomy. But as regards the limitations of this autonomy the doctrine of juridical act is indifferent. The idea that the pandectist school associated with it an unlimited ‘reign of the will’ is a myth. The clearest proof for the ideological neutrality of the doctrine of the juridical act is the fact that it was widely spread also among the members of the socialist legal family.

Finally, the inclusion of the doctrine of the juridical act into a civil code is criticized as being impracticable. Its high level of abstraction is regarded as detrimental for the comprehensibility of the code; and as its rules are generally drafted with contracts in mind, numerous exceptions need to be made for other types of juridical acts. This problem is indeed well illustrated in the Bürgerliches Gesetzbuch (BGB), which in the ambit of family law (family) and succession law is forced to provide numerous special provisions (regarding, for instance, the rules on invalidity and representation). Defenders of a codified doctrine of the juridical act, on the other hand, argue that it helps to avoid constant repetitions, legislative gaps, and unjustified differentiations. Moreover, they point out that the reference technique often employed in civil codes which do not recognize the notion of the juridical act in fact constitutes nothing more than a ‘hidden’ doctrine of juridical act, which has the disadvantage, however, that the precise ambit of the reference is often unclear. In the final analysis, the lines of argument resemble the debate on a general part in a civil code. As either solution has its merits and drawbacks, it seems that none of them can be regarded as structurally superior and that a decision needs to be taken on the basis of pragmatic considerations.

7. Conclusion and prospects

The doctrine of the juridical act counts among the most influential, but also the most controversial, accomplishments of German legal scholarship. It is firmly established in the legal thinking of most civil law countries, although its importance varies to a significant extent. As nowadays its value is mainly viewed critically, the employment of the concept of the juridical act in the DCFR (Common Frame of Reference) has come as a surprise. To demand its complete abolition is hardly justified, though: the concept of the juridical act is still of considerable expository and systematic value for legal doctrine and, under certain circumstances, can also serve as a useful tool for legislation. Finally, it is to be expected that the notion of the juridical act will become part of European private law, even if it will feature less prominently than it currently does in a number of the existing national jurisdictions.

Literature

Frederico de Castro y Bravo, El Negocio Jurídico (1967); Werner Flume, Allgmeiner Teil des Bürgerlichen Rechts, vol 2: Das Rechtsgeschäft (3rd edn, 1979); Tony Weir (tr), Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (2nd edn, 1987) 152 f, 348–52 (the relevant passage is not contained in the 3rd edn, 1998); Paulo Mota Pinto, Declaração Tácita e Comportamento Concludente no Negócio Jurídico (1995); Vincenzo Scalisi, Il negozio giuridico tra scienza e diritto positivo (1998); Martin J Schermaier, ‘Vor § 104. Das Rechtsgeschäft’, ‘§§ 116–124. Willensmängel I’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol I (2003); John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition (3rd edn, 2007) 75 ff; Bénedicte Fauvarque-Cosson and Denis Mazeaud (eds), Projet de Cadre Commun de Référence: Terminologie Contractuelle Commune (2008) 101 ff; Filippo Ranieri, Europäisches Obligationenrecht (3rd edn, 2009) 127 ff; Jan Peter Schmidt, ‘Der “juridical act” im DCFR: Ein nützlicher Grundbegriff des europäischen Privatrechts?’ (2010) 18 ZEuP 304.

Retrieved from Juridical Act – Max-EuP 2012 on 29 June 2022.

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