Reichsoberhandelsgericht (with Reichsgericht)
After the German states had agreed upon the harmonization of the law on negotiable instruments (draft of an Allgemeine Deutsche Wechselordnung of 9 December 1847) and later on most other subjects of commercial law (draft of an Allgemeines Deutsches Handelsgesetzbuch (ADHGB) of 12 March 1861), it soon became clear that these two measures alone would not lead to real legal unity in Germany. First, because there were no legislative powers on the federal level, the two drafts had to be adopted individually by each state, which made it possible to amend the common draft or deviate from it; secondly, there was no court with national jurisdiction, so that the interpretation of the uniform law differed from state to state.
The first deficit, ie diverging introductory laws, was gradually remedied by the political unification of the German nation. The Northern German Bund adopted the Allgemeine Deutsche Wechselordnung and the Allgemeines Deutsches Handelsgesetzbuch (ADHGB) as federal laws (Act of 5 June 1869, § 1), and the succeeding German Bund (constitution of 31 December 1870, Art 80(1)) and the German Reich (Act of 16 April 1871, § 2) kept both and introduced them in their territories. To eliminate the second deficit, ie differing case law, the Northern German Bund established the Bundesoberhandelsgericht, a federal supreme court for commercial matters. The legal foundation for this court was the Gesetz, betreffend die Errichtung eines obersten Gerichtshofes für Handelssachen (12 June 1869), the Act concerning the establishment of a supreme court for commercial matters (‘Establishment Act’). In the German Reich, the court was renamed Reichsoberhandelsgericht (plenary decision of 2 September 1871, BOHGE II, 448). When the Gerichtsverfassungsgesetz, the Judicature Act (of 27 January 1877) came into force (on 1 October 1879), the Reichsoberhandelsgericht was merged into the new federal supreme court, the Reichsgericht (see 7. below).
2. History of commercial courts
In ancient Rome, there was no commercial law in the modern sense of a special private law for merchants. However, according to Livy (ab urbe condita, 2.27.5), as early as 495 BC a mercatorum collegium was established that had disciplinary powers over its members; Cicero, for instance, mentions in a letter to his brother (56 BC) the exclusion of a merchant from the collegium (ad Quintum fratrem, 2.5.2).
In a similar manner, but of course with important differences, medieval guilds regulated the conduct of their members. From these measures of self-regulation arose a Standesrecht (law of professional conduct) and a special jurisdiction for merchants, which later developed into a special private law for merchants (commercial law) and a specialized and independent branch of jurisdiction (commercial courts) (see generally: lex mercatoria). Internationally, the most influential decisions were those of the Italian courts. In Germany, the most prominent commercial courts were located in Leipzig (1682) and Nuremberg (1697).
It was not until the 19th century that commercial courts were established in most parts of Germany. The first impulse came from the Code de commerce (1807), which recognized commercial courts with merchants as judges: the so-called Tribunaux de commerce (Arts 615–648). Positive experiences in France as well as in the German states that applied the Code de commerce paved the way for the idea of commercial courts among the German merchants associations and, eventually, also among political decision-makers. The commercial court in Hamburg, which consisted both of merchants and lawyers, became a sort of a model (Act of 15 December 1815); Bremen (Act of 16 June 1845) and Lübeck (Act of 17 December 1860, § 21) followed Hamburg a couple of decades later. The second impulse came from the draft of an Allgemeines Deutsches Handelsgesetzbuch (1861). Although its final version did not, unlike the Prussian draft (Arts 971–1063), deal with commercial courts (that was left to the individual states, Art 3), the first nationwide codification of commercial law prompted more calls for such courts.
As a result, a spirited debate about the utility or futility of commercial courts arose in the second half of the 19th century. The first (1861), third (1865) and fourth (1868) Handelstag (association of merchants), the fifth (1864) Juristentag (association of lawyers), the seventh congress of German political economists (1864) as well as many observers called for the nationwide introduction of commercial courts, and more and more states established them. The main exception was Prussia which, outside its Rhine provinces, founded no comparable institution. It is true that Prussia’s general law of procedure, the Allgemeine Gerichtsordnung (1795), included special rules for commercial matters (part I, title 30), but here merchants only gave advice, with no participation in the decisions. The Prussian law on the establishment of commercial courts (3 April 1847) gained no practical relevance.
On the basis of widespread requests and the good experiences with commercial courts in some parts of the country, the drafts of the Judicature Act intended to establish commercial courts for the whole Reich (see for the last version Reichstag printed matter 4/1874-75 of 29 October 1874, §§ 81–92). In the aftermath of a lively discussion, however, the legislature abandoned the idea and, instead, allowed the formation of chambers for commercial matters at the Landgerichte (the general regional courts), as the first level of commercial jurisdiction (Gerichtsverfassungsgesetz of 27 January 1877, §§ 100–118).
Despite the fact that the Oberhandelsgericht, in the composition of its panels, did not follow the idea of the commercial courts (as only lawyers could become judges, see 4. below), the long tradition of special courts for commercial matters probably helped prevail over general opposition against the creation of a national supreme court.
3. Political steps towards the Oberhandelsgericht
With the collapse of the Holy Roman Empire (1806), the jurisdiction of the Reichshofrat (Aulic Council) and the Reichskammergericht (Imperial Chamber Court) came to an end. It took more than six decades and required numerous initiatives until, after the foundation of the Northern German Bund (1867), a federal court could be formed, the Bundes- (1870) and, later, Reichsoberhandelsgericht (1871).
a) German Bund
The Deutsche Bundesakte, the constitution of the German Bund (8 June 1815), did not establish a federal court for civil and criminal matters, but only a so-called Austrägal Instanz to settle disputes among the Member States (Art 11(4)); the Wiener Schlußakte, the Vienna Final Act (15 May 1820), made further arrangements for these proceedings (particularly in Arts 21–24).
The four free cities of Bremen, Frankfurt, Hamburg and Lübeck were allowed, despite their relatively small population, to found a common supreme court (Deutsche Bundesakte, Art 12(3)). Accordingly, they set up the Oberappellationsgericht (OAG) in Lübeck (1820). The OAG Lübeck acquired a high reputation and substituted, to some degree, for the lack of a Federal Supreme Court until the establishment of the Oberhandelsgericht (1870) and the Reichsgericht (1879). Levin Goldschmidt (1829–97) later praised the truly inventive decisions of the OAG Lübeck (1887). A good example of its innovative spirit, and at the same time one of its most influential decisions, is the solution of the famous Korkholz case (1855). Following cautious earlier moves (in 1828 and 1831), the OAG Lübeck in that landmark case laid the foundation for the Drittschadensliquidation, ie the exceptional liquidation of damages suffered by a third person (decision of 20 January 1855, OAGE 2, 947).
b) Frankfurter Nationalversammlung
The Frankfurter Nationalversammlung (the Frankfurt Assembly, 1848/1849) agreed upon a constitution (28 March 1849) that devoted one of its seven sections to a so-called Reichsgericht (section V, §§ 125–129). The jurisdiction of this court, however, was to be restricted to matters of constitutional law (§ 126). Moreover, the legislative powers on the federal level were limited to the introduction of courts for admiralty, maritime and diplomatic matters (§ 129). The Nationalversammlung rejected proposals for a general supreme court for civil and criminal matters.
c) Initiatives and demands
At the end of the deliberations leading to the Allgemeine Deutsche Wechselordnung, Württemberg’s representative had already expressed the concern that, although the legislation on negotiable instruments was to be uniform, the interpretation, the application and the case law would vary in different places and states, so that the actual law relating to negotiable instruments would still differ (protocol No 34 of 8 December 1847, 245).
The subsequent years showed that the fear of judicial fragmentation had not been unreasonable, and there were numerous initiatives and petitions to create a superior court. Further impetus was provided by the Allgemeines Deutsches Handelsgesetzbuch (1861), because it greatly increased the potential for possible legal divergences despite uniform legislation. The first German Handelstag (1861) therefore demanded: ‘The German governments and estates shall reach an agreement to establish as soon as possible a common German supreme court for the preservation of the unity and the further joint development of German commercial law’ (proceedings, 110). Almost all of the Juristentage of this period called for the creation of a supreme court, the first (1860), second (1861), fourth (1863), fifth (1864) and sixth (1867); the notion was also supported by the seventh congress of German political economists (1864).
The parliaments in Baden (1861), Nassau (1861) and Prussia (1861) joined the demands for a superior court. On the federal level, however, all efforts were fruitless—even for constitutional matters, despite intensive discussions about a Bundesgericht in the assemblies of the German Bund and later during the deliberations concerning the Northern German Bund’s constitution (26 July 1867).
d) Legislative process
The legislative process that led to the creation of the Oberhandelsgericht commenced with a draft of Saxony (Bundesrath printed matter No 22/ 1869 of 23 February 1869); the initiative had probably been previously coordinated with Prussia (the exact course of events is unknown since important documents have been lost).
The deliberations proceeded without delays. Only a month after the presentation of the draft, the judiciary committee submitted its report (Bundesrath printed matter 51/1869 of 22 March 1869). About two weeks later, the Bundesrath enacted the draft with minor modifications (Bundesrath protocol of 5 April 1869, § 109). On the same day, the adopted version was introduced in the Reichstag (Reichstag printed matter No 71/ 1869 of 5 April 1869). After thorough deliberations, the Reichstag passed the law with a few changes one-and-a-half months later (Reichstag protocol of 21 May 1869, 998). In both houses, the draft won a great majority of votes, but it also attracted criticism. The opposition of the Hanse cities was probably an attempt to preserve the OAG Lübeck’s (see 3. a) above) influence. Not completely unfounded, of course, was the argument that a federal court would not accomplish its goal of legal unity without a uniform substantive and procedural law. Eventually, these concerns were unable to undermine the political will to create a superior court. As stated aptly by representative Johannes Miquél (1828–1901) of the national liberal party: no one could ignore ‘that this court is an interim solution under a legal perspective, but a permanent institution from a national point of view’ (Reichstag protocol of 10 May 1869, 290).
The Oberhandelsgericht was located in Leipzig (§ 2 Establishment Act) and was officially opened on 5 August 1870 (Act of 22 June 1870; report in BOHGE I, 5–14). The president of the court throughout its existence was Heinrich Eduard Pape (1816–88), who had already participated in the drafting of the Allgemeines Deutsches Handelsgesetzbuch (ADHGB) and later became president of the commission that was in charge of preparing the Bürgerliches Gesetzbuch.
Members of the Oberhandelsgericht had to be Rechtskundige (legally trained persons), ie judges and law professors (§ 6 Establishment Act). Therefore, unlike with the traditional commercial courts on lower jurisdictional levels (see 2. above), no merchants could be appointed to the Oberhandelsgericht. The only law professor among the first judges was Goldschmidt (Bundesrath protocol of 18 December 1869, § 384).
The judges of the Oberhandelsgericht were appointed for life (§ 23(1) Establishment Act) and were independent from the executive and legislative branches because only the plenum of the Oberhandelsgericht could remove them (§§ 23–25 Establishment Act). The Oberhandelsgericht regulated the most important procedural matters in its Regulativ für den Geschäftsgang bei dem Bundesoberhandelsgericht (BOHGE II, 7-19).
The local jurisdiction of the Oberhandelsgericht was extended from the territory of the Northern German Bund (§ 1 Establishment Act) to the German Bund (constitution of 31 December 1870, Art 80(1)) and the German Reich (Act of 16 April 1871, § 2).
The subject-matter jurisdiction of the Oberhandelsgericht was originally limited—as the name suggests—to Handelssachen, ie commercial matters (§ 1 Establishment Act). These were suits arising from commercial transactions, Handelsgeschäfte (§ 13(1)(1) Establishment Act) and negotiable instruments (§ 13(1)(2) Establishment Act) as well as conflicts among the members of commercial partnerships and companies (§ 13(1)(3)(a) Establishment Act). The subject-matter jurisdiction was continuously extended in two directions. First, the term Handelssachen (commercial matters) was broadened, by virtue of the first stock corporation reform Act (11 June 1870, § 1: Arts 5, 174, 208), the Act on trademark protection (30 November 1874, § 19), the Banking Act (14 March 1875, § 50) and the Act concerning the copyright on designs (11 January 1876, § 15). Secondly, the Oberhandelsgericht was assigned a number of subjects that were not commercial matters: compensation for the repeal of duties on rafting of timber (Act of 1 June 1870, § 2); civil and criminal proceedings concerning copyrights (Acts of 11 June 1870, § 32; of 9 January 1876, § 16; of 10 January 1876, § 9; of 11 January 1876, § 14); civil and criminal disputes in consular affairs (Act of 22 April 1871, § 3); liability matters (Act of 7 June 1871, § 10); disciplinary proceedings against lawyers appearing before the Oberhandelsgericht (Act of 29 March 1873); financial disputes arising from civil service (Act of 31 March 1873, §§ 149–155); disputes about the recovery of stranded goods (Act of 17 May 1874, § 44); and patent matters (Act of 25 May 1877, §§ 32, 37; order of 1 May 1878). For Alsace-Lorraine, the Oberhandelsgericht became the highest state court with general jurisdiction for civil and criminal matters (Act of 14 June 1871).
The jurisdiction of the Oberhandelsgericht could neither be excluded by transmissio actorum (§ 12(2) Establishment Act) nor by party agreement (20 May 1873, ROHGE 10, 200, 202).
The Bundes-, later Reichsoberhandelsgericht had existed for only nine years before the Reichsgericht (see 7. below) replaced it (1879). The Oberhandelsgericht’s short lifespan is not a sign that the court was a failure. On the contrary, the Oberhandelsgericht had become a victim of its own success, for its convincing activity in the area of commercial law led the legislature continuously to expand its jurisdiction until with the foundation of the Reichsgericht it eventually covered all civil and criminal matters. A lasting legacy of the Oberhandelsgericht are 25 volumes containing its most important cases, the Entscheidungen des Bundes- (later Reichs-)Oberhandelsgerichts (BOHGE/ROHGE), which are still regularly cited today (for instance concerning the above-mentioned Drittschadensliquidation, recognized for the first time on 28 October 1873, ROHGE 11, 256, 259/260).
For the unification of German commercial law, the Oberhandelsgericht proved to be the hoped-for keystone; for the unification of German civil law in general, it was an unexpectedly large step.
7. Outlook: Reichsgericht
The decade-long requests for a superior court (see 3. above) mainly referred to commercial matters. That focus, of course, had its reason in the economic implications of commercial law, but also in the fact that the draft of the Allgemeine Deutsche Wechselordnung (1847) and the Allgemeines Deutsches Handelsgesetzbuch (1861) had led to uniform commercial provisions that made the lack of uniform court practice visible even to outside observers. Calls for a supreme court with general jurisdiction in civil matters, however, were commonly rejected on the ground that, before such a move, the private law itself would have to be uniform, or at least harmonized. The history of the Reichsgericht shows that this concern was unfounded.
The time for a national supreme court had come when an agreement was reached on the Judicature Act, the Gerichtsverfassungsgesetz (of 27 January 1877), which created the Reichsgericht (RG), the German Supreme Court with general jurisdiction for civil and criminal matters (§§ 125–141). The RG succeeded the Oberhandelsgericht which merged into it. The Introductory Act (27 January 1877) to the Gerichtsverfassungsgesetz (EGGVG) provided that all cases pending before the Oberhandelsgericht were to be transferred to the RG (§ 14; also Act of 16 June 1879). The judges of the Oberhandelsgericht were either to be employed by the RG, or to be retired (§ 19 EGGVG). Following a heated debate in the Reichstag that culminated in a roll-call vote (Reichstag protocol of 21 March 1877, 314), Leipzig became the seat of the RG instead of Berlin (Act of 11 April 1877, § 2). As a consequence, the RG not only inherited the judges but also the physical resources of the Oberhandelsgericht (from 1 October 1879 onward, § 1 EGGVG). The RG’s first president (1879-91) was Eduard Simson (1810–99), a distinguished lawyer and former head of several German parliaments.
The RG greatly contributed to Germany’s legal unity as well as to the general legal development of Germany and Europe. In the two decades before the enactment of the Bürgerliches Gesetzbuch (1896), the RG managed to harmonize the core areas of private law, despite differing state laws and all the concerns that had been raised before the establishment of the Court. Subsequently, the RG ensured a smooth transition into the new era by taking account of the legal traditions when applying the new provisions of the Bürgerliches Gesetzbuch. The RG’s role during the Third Reich (1933–45) is highly controversial; its activity ended with the occupation of Germany (Military Law No 2 of 18 September 1944, Art 1). At least for the time before Hitler, the RG has left a treasure of decisions that will have an enduring effect on German law: 172 volumes (1880–1945) of important private law cases, the Entscheidungen des Reichsgerichts in Zivilsachen (RGZ), and 77 volumes (1880–1944) of key criminal cases, the Entscheidungen des Reichsgerichts in Strafsachen (RGSt), as well as countless decisions that were published elsewhere or remained unpublished.
Lawyers of today still often refer to the decisions of the RG. This is justified and warranted, considering the acknowledged quality of its decisions, and it reflects the high reputation that the RG has preserved until today. It is somewhat irritating, however, that many authors give decisions from the time of the Third Reich the same authority as earlier judgments. Another habit that might be based more on tradition than on reflection is that the decisions of the RG still enjoy higher authority and receive more attention than much more recent decisions of foreign courts (even with regard to provisions that have the same wording). In times of worldwide free access to supreme court decisions, this preference of old national over current foreign judgments becomes more and more questionable. Sound reasoning requires both vertical and horizontal legal comparison. Surprisingly, given their much more limited means of communication, the Oberhandelsgericht and the Reichsgericht were considerably ahead of today’s superior and supreme courts in considering legal sources from many different jurisdictions. In light of this openness to foreign sources, today’s lawyers will not only learn from the Oberhandelsgericht’s and the Reichsgericht’s decisions as such, but also from the methods that were employed to reach them.
Wilhelm Endemann, ‘Das Gesetz vom 21. Juni 1869, betreffend die Errichtung des Bundes-Oberhandelsgerichts zu Leipzig’ (1869) 17 Archiv für Theorie und Praxis des Allgemeinen deutschen Handelsrechts XLVII; Levin Goldschmidt, Handbuch des Handelsrechts, vol I (2 edn, 1875) 147 ff; Wilhelm Silberschmidt, Die Entstehung des deutschen Handelsgerichts (1894); Wilhelm Silberschmidt, Die Deutsche Sondergerichtsbarkeit in Handels- und Gewerbesachen insbesondere seit der französischen Revolution (1904) (supplement to the Zeitschrift für das gesamte Handelsrecht, vol LV); Werner Schubert, Die deutsche Gerichtsverfassung (1869–1877) (1981) 140 ff; Regina Ogorek, ‘Privatautonomie unter Justizkontrolle—Zur Rechtsprechung des Reichsoberhandelsgerichts (1870–1879)’ (1986) 150 ZHR 87; Herbert Kronke, ‘Rechtsvergleichung und Rechtsvereinheitlichung in der Rechtsprechung des Reichsoberhandelsgerichts’ (1997) 5 ZEuP 735; Kai Müller, Der Hüter des Rechts: Die Stellung des Reichsgerichts im Deutschen Kaiserreich 1879–1918 (1997); Sabine Winkler, Das Bundes- und spätere Reichsoberhandelsgericht (2001); Alexander Brunner (ed), Europäische Handelsgerichtsbarkeit (2009); Daniel Schwander, Das Zürcher Handelsgericht und die branchenspezifische Zusammensetzung seines Spruchkörpers (2009).
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