The civil code (Bürgerliches Gesetzbuch, BGB.) Of August 18, 1896, which entered into force on January 1, 1900, is the largest and most doctrinally elaborated code that has been compiled to date. With its 2,385 paragraphs and 218 articles of the introductory law (Einführungsgesetz, EG.), It encompasses a very vast field in that the individual provisions strive to contemplate, with a strong abstraction, the largest possible number of cases and to fix them with precision in a studied and original language. The judge is so close. However, the German courts have managed to gain a great deal of freedom over time for new solutions. The code itself appeals to the judge’s appreciation in some of the general provisions. And these have become particularly preferred ways out of judges for introducing changes in law. In particular: § 157 “Contracts must be interpreted as required by good faith having regard to social customs”; § 242: ”
The code, in its division into five parts and related subdivisions, with its concepts (e.g. of thing, person, inheritance, universal succession), with its types of contract (e.g., leasing of works, leasing of works, not yet an employment contract) and numerous individual norms are closely related to the results of the most recent pandectistic doctrine; even if, contrary to his first draft, it contains many other provisions, partly derived from German law, partly new. The general idea that informs him is objectivity and neutrality with respect to conflicting private interests. Therefore, fundamental principles for the new legislation were the freedom of form of contracts, in the law of obligations the principle of contractual freedom, in the law of things the assiduous care for trade protection. At the same time there are important attempts to protect the weak against possible abuse, Fr. eg, the constant favor accorded to good faith and morality; the continuous fight against usury; the postulate of the necessary diligence in social relations (im Verkehr erforderliche Sorgfalt, § 176), the severe limitation of the bargaining capacity of minors and the mentally ill; the illegitimate child always has alimony action against the father, who still has the exceptio plurium concubentium at his disposal. The position of the wife, the subject of much discussion, is substantially elevated in the code, even if the administration and usufruct of the husband established by law, in the absence of a marriage contract, regardless of the woman’s economy, appears susceptible to improvement.
The “general part” of the code contains, in addition to the law of persons known also to other codes, a series of general doctrines of private law, especially those relating to the legal transaction, time limits, prescription, self-defense, and others. This abstract method marks the aspiration of the BGB. to the highest systematic organization of matter. While other codifications are limited to the general doctrine of mandatory contracts, here the discipline extends not only to all contracts (for example, also in the field of real rights and partly in the field of family and succession law), but to broader sphere of all legal negotiations.
From the general the code gradually passes to the particular. Thus in the law of obligations it presents continuous concentric circles of provisions for all obligatory relationships, for obligatory contracts, for bilateral obligatory contracts and finally for the single types of contract, e.g., sales contract (and here, again, for special forms of sale). However, if this method offers advantages, it also has drawbacks.
In many places the code brings to fruition institutions insufficiently developed by Justinian, such as representation, power of attorney, contracting in favor of third parties and enrichment actions, which have a broad scope as in no other code. Even more radical than Justinian, the code begins to consider legal relationships no longer from the procedural point of view, but in a state of rest, so that the question no longer arises: is there a right to action? but the other: is there a right? Unilateral extra-procedural acts lead to changes in rights, such as payment order, termination, declaration of compensation, termination of the contract. The general rule of the Code civil, art. 1382 (Italian civil code art. 1151: “any act of man who causes harm to others, obliges the one for which it occurred, to compensate the damage”), was abandoned in favor of single types of crimes, which, for when considered well, they are however somewhat incomplete.
Characteristic is then, for example, the decisive elaboration of the Romanistic dogma of guilt; guilt makes one responsible, but fortuitous events do not. The law itself, however, places exceptions and temperaments to this precept. In real estate law, the land register is brought to a dominant position and with this the publicity of legal relationships relating to real estate is treated in an exemplary way. At the same time, credit is promoted in an extraordinary way by means of the finely developed mortgage law. Today, however, this tendency to “mobilize” the funds no longer meets the same favor, especially for rustic funds. Divorce is allowed for several reasons; by truncation (Zerrüttung) of married life, but only in the event of a party’s fault. The matrimonial property regime can be changed by contract even during the marriage. By legitimate succession the surviving spouse, if in competition with descendants, inherits the fourth part, otherwise half or the whole. Besides the will, the succession agreement is recognized. The freedom to dispose on grounds of death is limited only by the legitimate right of the wife and descendants and, in the absence of these, by that of the testator’s parents to half of the respective inheritance portion.
The code alone cannot give us an exact picture of current law today. This was perfected in a multifaceted way and profoundly transformed, with regard to the change of situations, by the jurisprudence of the supreme court of the empire (Reichsgericht), which continued the tradition of the excellent jurisprudence of the court of commerce of the empire (Reichsoberhandelsgericht). Among the innovations, the institutions, still unknown to the code, introduced for the first time by jurisprudence, should be highlighted: the right of associations without legal personality, the transfer of ownership as guarantee of a credit, the extinction of unexercised rights for a long time and the numerous new figures in the field of the law of obligations, such as the rebus sic stantibus clause, the liability for fault in the conclusion of contracts and the general recognition of an action aimed at ceasing (Unterlassungsklage) illegal violations of rights or of legally protected assets.
