Allgemeines Deutsches Handelsgesetzbuch (ADHGB)

by Andreas M Fleckner

1. Introduction

The draft of a general German commercial code (12 March 1861), the Allgemeines Deutsches Handelsgesetzbuch (ADHGB), is the most important step in the history of German commercial law. Although the German Reich replaced the ADHGB with a new commercial code, the Handelsgesetzbuch (10 May 1897), less than four decades after its enactment, many of the ADHGB’s provisions are still in force, because many have been kept with no or only minor changes. Austria adhered to the ADHGB until its Anschluß (annexation) to the German Reich (1938). In Liechtenstein, the ADHGB is still in force, though considerably revised (see, most recently, the Kundmachung of 21 October 1997).

Since there was no federal legislation at the time the ADHGB was drafted, it initially only came into force at the state level. The Northern German Bund adopted the ADHGB some years later as a federal law (Act of 5 June 1869, § 1). The German Bund (constitution of 31 December 1870, Art 80(1)) and the German Reich (Act of 16 April 1871, § 2) kept the ADHGB and introduced it in their territories.

2. Commercial codes abroad

The ADHGB follows a number of prominent commercial codes in other European jurisdictions. The most influential codification was the French Code de commerce (1807), which inspired and shaped commercial codes all over Europe, such as the Spanish Código de comercio (1829), the Portuguese Código commercial (1833) and the Dutch Wetboek van Koophandel (1838). In many German states, where France had introduced the Code de commerce during its occupation, the Code was maintained until the enactment of the ADHGB. Baden (1809) adopted a German translation of the Code as an appendix to the French Code civil (1804). Even Prussia refrained from extending the scope of its general law, the Allgemeines Landrecht für die Preußischen Staaten (1794), to the Rhine provinces and left the Code de commerce in place.

3. Drafts of commercial codes on the state level

None of the German states developed and enacted a commercial code of their own. Some did, however, work on proposals which helped with the subsequent preparation and drafting of the ADHGB.

The most important discussion, both in quality and quantity, about the codification of commercial law took place in Prussia (beginning in 1817). Although its general law, the Allgemeines Landrecht für die Preußischen Staaten (1794), had regulated the class of merchants in great detail (II 8 §§ 475–2464), it soon became clear that these provisions did not meet the needs of commercial practice, particularly in the area of company law and the law on negotiable instruments. These shortcomings were recognized early, but the Prussian government waited nevertheless four decades before it published the draft of a commercial code for Prussia, the Entwurf eines Handelsgesetzbuchs für die Preussischen Staaten (1857). This draft, however, was advanced enough to function as the basis for the proceedings of the commission that drafted the ADHGB (see 5. below).

Four other state drafts of commercial codes were published before the ADHGB: one issued by Württemberg (1839/1840) and one by Nassau (1842) as well as two by Austria (1849 and 1857).

4. Political steps towards the ADHGB

The ADHGB lucidly illustrates the slow and difficult road to Germany’s unification, from the dissolution of the Holy Roman Empire (in 1806) to the foundation of the German Reich (in 1871).

a) Codification initiatives after the Befreiungskriege

After the Befreiungskriege (in English known as the War of the Sixth Coalition), there were a number of initiatives and proposals for the harmonization of German commercial law, both in the context of general efforts to codify the law and economic considerations. The most prominent proponent of the creation of a national civil code was Anton Friedrich Justus Thibaut (1772–1840), the author (1814) of the seminal pamphlet Ueber die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland (‘On the necessity of a general civil law for Germany’). Thibaut touches only briefly, though, upon the economic benefits of a uniform codification, ie the facilitation of economic exchange between the numerous German states of the time (33). Nor are the disadvantages, namely the loss of competition for the best rules (competition between legal systems) properly dealt with.

Politicians of the era were neither willing nor—given the limited resources and weight of the German Bund—able to further the goal of legal harmonization. The Deutsche Bundesakte, the constitution of the German Bund (8 June 1815), stated that the German states might, upon the first meeting of the federal assembly (Bundesversammlung), enter into negotiations about the commercial exchange between the different states (Art 19). In the Wiener Schlußakte, the Vienna Final Act (15 May 1820), these matters were reserved for further deliberations (Art 65). The governments, however, left it at these declarations without ever commencing discussions on the harmonization of commercial law.

b) Initiatives in the German Zollverein

As early as the first general conference (1836) of the German Zollverein, the German Customs Union (established 1834), the state of Württemberg launched an initiative towards the harmonization of commercial law (main protocol of 12 September 1836, § 40; supplement XI of 29 July 1836). The petition failed because the representatives lacked instructions concerning this matter (main protocol, ibid). At the second conference (1838), the governments did not pursue the issue because they doubted that it would be possible to agree upon a comprehensive codification (main protocol of 6 August 1838, § 15).

At the eighth conference (1846), again on Württemberg’s request, the states reached an agreement to concentrate their efforts on one particular matter of commercial law and to establish a commission for the harmonization of the law on negotiable instruments (main protocol of 17 August 1846, § 24). At the end of this commission’s proceedings (1847), Württemberg once more pressed for harmonizing the other branches of commercial law as well (protocol no 34 of 8 December 1847, 246).

After the interlude of the Frankfurt Assembly (see c) below), the tenth conference of the German Zollverein (1854) dealt once again, on Württemberg’s request, with the harmonization of commercial law (main protocol of 20 February 1854, § 54). The next steps, however, no longer occurred within the German Zollverein but in the German Bund (see d) below).

c) Draft of a general commercial code for Germany

The Frankfurter Nationalversammlung (the Frankfurt Assembly, 1848/1849) only marginally impacted the efforts to harmonize German commercial law. It is true that the constitution (28 March 1849) established the necessary legislative powers: ‘On the federal level, general codes on civil, commercial and criminal law as well as judicial procedures may be enacted to provide for legal unity in the German nation’ (§ 64). Yet, the untimely end of the Nationalversammlung meant all such attempts had failed. Nevertheless, an incomplete (raw) draft of a general commercial code for Germany, the Entwurf eines allgemeinen Handelsgesetzbuches für Deutschland (1849), an early fruit of these efforts, was often cited in later years and influenced the creation of the ADHGB. Another of the Nationalversammlung’s fruits was the enactment (through the Act of 26 November 1848, one of the few laws passed by the Nationalversammlung) of the draft of a general law on negotiable instruments, the Allgemeine Deutsche Wechselordnung (9 December 1847). The draft had been prepared by the commission of the German Zollverein (see b) above). Although the law was published in the official journal, the Reichsgesetzblatt, its legal status remained uncertain after the Nationalversammlung was dissolved.

d) Establishment of the Handelsrechtskommission by the German Bund

While, in the first decades, the German states had elected the general conferences of the Zollverein as a forum to discuss the harmonization of commercial law (see b) above), the German Bund took over this function in the aftermath of the Nationalversammlung. Consequently, just as Otto von Bismarck (1815–98) had feared, the centre of gravity shifted from the Zollverein, where Prussia was most influential, to the Bund, which was dominated by Austria (report of 29 April 1856).

After failed attempts at the beginning of the decade (protocol of 9 August 1851, § 112), the assembly of the Bund for almost four years refrained from dealing with the harmonization of commercial law. The new efforts, however, initiated by Bavaria (protocol of 21 February 1856, § 71), led only two months later to the establishment of a commission for the preparation and submission of the draft for a general commercial code (Commission zur Ausarbeitung und Vorlage des Entwurfes eines allgemeinen Handelsgesetzbuches), the so-called Handelsrechtskommission (protocol of 17 April 1856, § 141). Following numerous political skirmishes, the technical details were resolved and it was decided (protocol of 18 December 1856, § 352) that the meetings would begin in January 1857 (see 5. below).

e) Introduction of the ADHGB in the German states

Four years of thorough deliberations (see 5. below) had passed when the Handelsrechtskommission completed the draft of a general German commercial code, the Entwurf eines allgemeinen deutschen Handels-Gesetzbuchs (12 March 1861). However, neither the commission nor the Bund could adopt the draft as a formal law because the federal level lacked such legislative powers. Since the Member States had not committed to the ADHGB’s introduction by virtue of a treaty among them, no state was forced to introduce the draft in its territory either (explicitly stated in the protocol of 4 December 1856, § 328). A German commercial code could, therefore, only become reality if at least most of the states individually decided to adopt the draft without any material change. In this spirit, the assembly of the Bund ‘invited’ all governments to enact the draft as soon as possible and without any amendments (protocol of 31 May 1861, § 151).

Prussia, to show its political responsibility, adopted the draft of the ADHGB very quickly and with very few modifications (Introductory Act of 24 June 1861). The general mood became appreciable in the closing remarks of the reporter of the commission that the Prussian upper house had created for the purpose: ‘If this esteemed House does not adopt the commercial code today, the Prussian state will sustain an irrecoverable loss in the eyes of Germany, and therefore, gentlemen, I recommend the unaltered adoption of the said Act’ (protocol of 1 June 1861, 688). Pleas of this sort and the tight schedule of the proceedings had their intended effect: both houses introduced the ADHGB in the Prussian territories with great celerity.

Hamburg, as a Hanse city (Hanseatic league and pre-modern commercial law) with great experience in trade and the most critical voice within the Handelsrechtskommission, allowed itself much more time for the adoption of the ADHGB. The report of the senate and the city parliament that examined the ADHGB required more than three years (communication of the senate no 74 of 31 August 1864), and the introductory law was not enacted before the end of the following year (22 December 1865). While Hamburg, eventually, adopted the ADHGB without any changes, the Introductory Act provided for several important deviations. For commercial practice and the long-term development of commercial law, these additional provisions were mostly positive, particularly the waiver of the charter system (Arts 208, 209 ADHGB) for stock corporations (§ 25 Introductory Act); for the desired harmonization of commercial law, however, this departure from the common draft was a step backwards.

5. Drafting of the ADHGB

The deliberations of the Handelsrechtskommission (15 January 1857) could hardly have begun under less promising circumstances. Austria and Prussia were, as almost always in these years, at odds with each other. Both even disagreed on the city where the conference members should meet because Prussia feared that if the conferences took place in Frankfurt, the location of the Bund’s assembly, the conference members would be led astray by political and diplomatic influences (protocol of 13 November 1856, § 299). When, finally, the deliberations commenced in the city of Nuremberg, the next conflict emerged: both Austria and Prussia had prepared drafts (see 3. above) and the question arose whose version should constitute the basis of the discussions.

It is an often overlooked miracle that the conference members (mentioned in the protocol of 8 May 1861, § 132), despite the political tensions, found the necessary peace and quiet to discuss specific issues of commercial law in detail and on a surprisingly high intellectual level. It is of course true that transcripts of proceedings often paint excessively positive pictures. But the internal reports of the conference participants for their respective governments confirm that the discussion was truly focused on the subject matter and not on lateral political issues. The results speak for themselves: the protocols of the 589 numbered sessions, which were accompanied by a series of preparatory meetings, fill 5,152 folio pages (in two columns with one column left blank). Even 150 years later, these documents are, together with their supplements, the most important sources of statutory interpretation for German commercial law.

As early as the second preparatory meeting, the conference members resolved the problem of choosing one of the two drafts. According to a unanimous decision, the Prussian draft (see 3. above) was selected to form the basis of the discussion (meeting of 17 January 1857, protocols ADHGB, 6). Additionally, it was unanimously decided that the Austrian draft (the earlier version is called the ‘printed’ or ‘ministerial’ version, the later the ‘lithographed’ or ‘revised’ version) should constantly be referred to with great attention (meeting of 17 January 1857, protocols ADHGB, 6). This wording was very polite considering that later the conference only rarely dealt with the Austrian provisions. The rationale for these decisions lies probably more in the drafts themselves than in the political setting, because the Austrian draft was, as anyone would have noticed, less advanced than the Prussian. According to the polite wording of the presiding Bavarian state minister, the Prussian draft covered ‘more subjects’ than the Austrian draft, and experience told that, for legislative deliberations, it was much easier to carve out disposable parts from a longer text than to add to a less comprehensive draft everything that seemed essential to the assembly (meeting of 17 January 1857, protocols ADHGB, 6). The Prussian draft benefitted also from the fact that Prussia, on a smaller scale, faced a similar challenge as the German states on the whole: the unification of commercial law despite divergent civil law (ius commune; Code civil; Allgemeines Landrecht für die Preußischen Staaten).

The first reading of the first three (later four) books of the ADHGB comprised 98 sessions (nos 1–98, protocols ADHGB, 9–875) spanning a period of almost six months (21 January 1857 until 2 July 1857). The second reading lasted 78 sessions (nos 99–176, protocols ADHGB, 878–1469) and another six months (19 September 1857 until 3 March 1858). In the following two years, meetings were held in Hamburg (as decided by the Bund’s assembly on 23 July 1857, § 273) to discuss the fifth book on maritime trade: the first reading required 245 meetings (nos 177–421, protocols ADHGB, 1476–3692) and lasted for 18 months (28 April 1858 until 25 October 1859), while the second reading took 126 sessions (nos 422–547, protocols ADHGB, 3693–4491), spanning six and a half months (9 January 1860 until 22 August 1860).

Before the third reading of the first four books, Austria, Bavaria and Prussia came to an organizational decision that led to considerable diplomatic resentment among the states. The three leading powers agreed to exclude many of the states’ numerous amendment proposals from the third reading and eventually prevailed despite massive opposition. The thus-shortened third reading consisted of 41 sessions (nos 548–588, protocols ADHGB, 4493–5149) and took almost four months (19 November 1860 until 11 March 1861).

6. Content of the ADHGB

The ADHGB is a codification that, in 911 articles, covers almost all of the period’s commercial law. Only the law on negotiable instruments (Art 2 ADHGB) was excluded and left in the Allgemeine Deutsche Wechselordnung (see 4. c) above). The Prussian draft’s sections on insurance law (Arts 327–384 Prussian draft; the ADHGB only covers maritime insurance, Arts 782–905), commercial bankruptcy (Arts 693–970 Prussian draft) and commercial courts (Arts 971–1063 Prussian draft) were not retained.

The ADHGB is preceded by three general provisions (Arts 1–3) and divided into five books: ‘On Merchants’ (Arts 4–84), ‘On Commercial Partnerships and Companies’ (Arts 85–249), ‘On the Silent Partnership and on the Association for Individual Commercial Transactions for Common Accounts’ (Arts 250–270), ‘On Commercial Contracts’ (Arts 271–431) and ‘On Sea Trade’ (Arts 432–911). Germany’s commercial code of today, the Handelsgesetzbuch (see 1. above), still principally follows this structure; the main changes were the transfer of accounting rules to a separate third book, the removal of the law on stock corporations and the integration of silent partnerships and other associations of this type into the second book. In almost all fields of commercial law, the provisions of today’s Handelsgesetzbuch are based on those of the ADHGB or are even identical.

Compared to the paternalistic legislation of today and its vanishing faith in private autonomy (euphemistically referred to as consumer ‘protection’: consumers and consumer protection law), many provisions of the ADHGB appear very liberal. At that time, however, it was believed to be a balanced compromise between the liberal attitude of northern German merchants and the conservative positions of Prussian noblemen. Concerning the Prussian draft and in the context of partnership and company law, Levin Goldschmidt (1829–97) wrote that the basic forms should be governed as perfectly and consistently as possible by a general German commercial code, with regard to commercial requirements, and unaltered by paternalistic provisions of doubtful utility (1857, 160). Five years later, his conclusion was generally positive. Instead of anxious paternalism through procedural requirements and non-exhaustive casuistry, the ADHGB would, almost everywhere, give priority to the discretion of the parties involved and the judge (1862, 225).

7. Conclusion

Contemporary observers have praised the ADHGB as a ‘work of German thoroughness and prudence’ (commission report, Prussian lower house printed matter 223/1861 of 22 May 1861, 4), ‘not only the most thorough and the best among the existing commercial codes in Europe, but also a mostly good work’ (Goldschmidt, 1862, 225) and as ‘the first great achievement of national unification since the Constitutio Criminalis Carolina (Goldschmidt, 1875, 63–4). One modern observer even considers the ADHGB as the ‘most successful German codification’ (Werner Schubert, 1984, XV). The ADHGB’s significance becomes most apparent in the international context. Although relatively late and inspired by the Code de commerce, Germany was, besides France, the only other nation to develop an independent commercial code.

Literature

Levin Goldschmidt, ‘Der Entwurf eines Handelsgesetzbuchs für die Preußischen Staaten’ (1857) 4 Kritische Zeitschrift für die gesammte Rechtswissenschaft 105, 289; Levin Goldschmidt, Gutachten über den Entwurf eines Deutschen Handelsgesetzbuchs nach den Beschlüssen zweiter Lesung (1860) (supplement to the Zeitschrift für das gesammte Handelsrecht, vol III); Heinrich Thöl, Zur Geschichte des Entwurfes eines allgemeinen deutschen Handelsgesetzbuches (1861); Levin Goldschmidt, ‘Der Abschluß und die Einführung des allgemeinen Deutschen Handelsgesetzbuchs’ (1862) 5 Zeitschrift für das gesammte Handelsrecht 204, 515 (1863) 6, 41; Levin Goldschmidt, Handbuch des Handelsrechts, vol I (2nd edn, 1875) 57 ff; Alfredo Rocco, ‘The Commercial Codes’ in The Progress of Continental Law in the Nineteenth Century (1918) 332; Theodor Baums, Entwurf eines allgemeinen Handelsgesetzbuches für Deutschland (1848/49) (1982) 10 ff; Werner Schubert, ‘Quellen und Entstehung eines Allgemeinen Deutschen Handelsgesetzbuches’ in Werner Schubert (ed), Protokolle der Commission zur Beratung eines allgemeinen deutschen Handelsgesetz-Buches, vol I (1984) IX; Christoph Bergfeld, ‘Handelsrecht (Deutschland)’ in Helmut Coing (ed), Handbuch der Quellen und Literatur der neueren Europäischen Privatrechtsgeschichte, vol III/3 (1986) 2853; Andreas M Fleckner, ‘Aktienrechtliche Gesetzgebung (1807–2007)’ in Walter Bayer and Mathias Habersack (eds), Aktienrecht im Wandel, vol I (2007) 999, 1037 ff.

Sources

Code de commerce (10–15 September 1807), Bulletin des lois No 164, 161 ff; Code Napoléon mit Zusäzen und Handelsgesezen als Land-Recht für das Großherzogthum Baden (1809); Código de Comercio (30 May 1829), edicion oficial (1829); Código Commercial Portuguez (18 September 1833) (1833); Wetboek van Koophandel: Officiële uitgave (1838); Entwurf eines Handelsgesetzbuches für das Königreich Württemberg mit Motiven, vol I Entwurf (1839), vol II Motive (1840); Entwurf einer Handels- und Wechsel-Ordnung für das Herzogthum Nassau (1842); Allgemeine Deutsche Wechsel-Ordnung (9 December 1847), reprinted in Protocolle (1848) 269 ff; Gesetz, betreffend die Einführung einer allgemeinen Wechselordnung für Deutschland (26 November 1848), Reichsgesetzblatt No 6 of 27 November 1848, 19 ff; Protocolle der zur Berathung einer Allgemeinen Deutschen Wechsel-Ordnung in der Zeit vom 20. Oktober bis zum 9. Dezember 1847 in Leipzig abgehaltenen Conferenz nebst dem Entwurfe einer Wechsel-Ordnung für die Preußischen Staaten, den Motiven zu demselben und dem aus den Beschlüssen der Conferenz hervorgegangenen Entwurfe (1848); Entwurf eines allgemeinen Handelsgesetzbuches für Deutschland (1849); Entwurf eines österreichischen Handelsrechtes nach den Beschlüssen der im Jahre 1842 dießfalls niedergesetzten Hof-Commission (1849); Entwurf eines Handelsgesetzbuchs für die Preussischen Staaten, 2 vols (1857); Entwurf eines österreichischen Handelsrechtes nach den Anträgen des k.k. Justizministeriums, mit Rücksicht auf die in der Minister-Conferenz gepflogene Berathung (1857); Protokolle der Commission zur Berathung eines allgemeinen deutschen Handelsgesetz-Buches, 9 vols with supplements (1857–1861); Entwurf eines allgemeinen deutschen Handelsgesetz-Buchs (12 March 1861), reprinted in Beilagen-Band zu den Protokollen DXLVIII-DLXXXIX der Commission zur Berathung eines allgemeinen deutschen Handelsgesetz-Buches (1861); Einführungsgesetz zum Allgemeinen Deutschen Handelsgesetzbuch (24 June 1861), Gesetz-Sammlung für die Königlichen Preußischen Staaten, 449 ff.