The German Law of Contract.pdf - (A Markesinis Prelims 13:27 Page i THE GERMAN LAW OF CONTRACT SECOND EDITION(A Markesinis Prelims 13:27 Page ii(A

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Unformatted text preview: (A) Markesinis Prelims 2/2/06 13:27 Page i THE GERMAN LAW OF CONTRACT SECOND EDITION (A) Markesinis Prelims 2/2/06 13:27 Page ii (A) Markesinis Prelims 2/2/06 13:27 Page iii The German Law of Contract A Comparative Treatise Second Edition SIR BAS IL M A R K E S IN IS HANNE S U N B E R AT H ANGU S J O H N S T O N Forewords by Lord Bingham, Senior Law Lord and Professor Dr Günter Hirsch, Bundesgerichtshof OXFORD AND PORTLAND, OREGON 2006 (A) Markesinis Prelims 2/2/06 13:27 Page iv Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Web Site: © Basil S Markesinis, Hannes Unberath and Angus Johnston 2006 Basil S Markesinis, Hannes Unberath and Angus Johnston have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] WEBSITE: http// British Library Cataloguing in Publication Data Data Available ISBN 13: 978–1–84113–471–0 (hardback) ISBN 10: 1–84113–471–6 (hardback) ISBN 13: 978–1–84113–472–7 (paperback) ISBN 10: 1–84113–472–4 (paperback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall (A) Markesinis Prelims 2/2/06 13:27 Page v Foreword by Lord Bingham There are many good reasons for a common lawyer to study a foreign law such as the German law of contract. First and foremost, as a sustained exercise in human thinking, the product of philosophical debate, scholarly discussion and judicial application over many years, such a law deserves study in its own right. It is, like an epic poem or a symphony or a work of architecture, a refined manifestation of the human mind and spirit, commanding attention on that ground alone. Such a reason may not be very fashionable nowadays, but it should come first all the same. The Second reason is more pragmatic. It is that by studying a foreign law such as the German law of contract the common lawyer gains valuable insights into his own law: “And what should they know of England who only England know?” On first perusing this text, the common lawyer will be struck by the familiarity (in translation) of a number of elements of the German law of contract, which may indeed be elements of any coherent law of contract. But the appearance of familiarity is to some extent deceptive, since frequently the underlying concepts are different, sometimes subtly so, sometimes substantially. Even the meaning of “contract” is not the same. These differences appear from the authors’ skilful analysis, which they illuminate with references to the French Civil Code and the American and English common law. The third reason for legislators, lawyers and judges to study a foreign law such as the German law of contract is even more pragmatic: it is to facilitate the timehonoured practice of theft. This is not, of course, to suggest that the BGB could or should be uprooted bodily and transplanted in British soil. Even if feasible, that would be absurd. But the snapping-up of well-considered trifles has a respectable legal ancestry, and when choices have to be made about the future development of an important field of law it is highly beneficial to know how the same problem has been resolved in another sophisticated and respected legal system. There are no doubt circumstances in which ignorance is bliss, but it is never folly for a lawmaker to be informed. That leads on to a fourth and important reason. While some welcome the prospect more than others, it seems inevitable that the years ahead will bring some degree of convergence between the laws of the major European states, German and Britain prominent among them. As active trading partners, members of the European Union responsive to and bound by its legislation and as parties to important international conventions, this trend must surely grow in strength, even if falling well short of unification. It would of course be a lamentable result if this process were to lead to a common European law manifestly inferior to the national laws it replaced. So the objective of all involved must be to establish principled rules embodying the best jurisprudential products of all the great European systems. But that requires knowledge and understanding not only of one’s own law but also of others with which it must be compared and blended. (A) Markesinis Prelims vi 2/2/06 13:27 Page vi FOREWORD When stepping into the unknown or incompletely known, even the most conscientious traveller needs a guide. It would be hard to find any guide better qualified or suited to their task than the authors of this big and important book. Tom Bingham House of Lords 12 April 2005 (A) Markesinis Prelims 2/2/06 13:27 Page vii Foreword by President Hirsch On January 1, 2002, the time-honoured German Bürgerliches Gesetzbuch (BGB) which came into force on January 1, 1900 underwent one of its most fundamental changes. With the Gesetz zur Modernisierung des Schuldrechts, not only were a number of EC Directives implemented, but the need for a modernisation of the entire law of obligations and the statutory limitation rules was also finally met. In addition, the tendency to regulate specific questions of the law of obligations by means of special statutes was brought to an end in order to retain the advantages of a comprehensive codification of the law of obligations in one singly document. A similar development can be witnessed in the case of the French Code civil. The indisputable necessity to shape the law of obligations of the Member States of the European Community in such a way that it does not adversely affect trans-frontier trade can be taken into account in two ways. Either the national legislators modify their Civil Law in such a way that it is compatible with the legal systems of the other Member States, or the European legislator standardises certain fields of law within the framework of its (limited) competence—doing this as a rule by means of Directives. Beyond the isolated steps taken in specific sectors towards an approximation of Civil Law within the European Community, the idea of an epochal project is now gaining wider recognition within the Community: a European law of contract. In 2001 the European Commission put forward four options for discussion: (1) to leave the solution of defects discovered to the market, (2) to develop common principles of the European law of contract, (3) to improve the already existing EC law of contract and (4) to lay down new regulations concerning the law of contract. With this, the development of a European law of contract has been given a new impetus. But in the short term, no quick results can be expected. This forms the background to the work by Professor Sir Basil Markesinis, an acknowledged authority on German civil law, and his co-authors. Civil Law is the heart of every country’s legal culture. It has developed over the centuries and is an integral part of national identity of all countries. However, today trade and tourism know no boundaries. Therefore the law also, particularly a country’s law of obligations, can no longer restrict itself to providing purely national answers without any regard for other legal systems. Getting to know other legal systems and incorporating them in the interpretation and development of one’s own law represents more than a cultural and intellectual enrichment. In reality it is indispensable to practice since every jurist needs to be able to see further than his own everyday problems. This is particularly true of the law of obligations which regulates the legal assessment of everyday business—a branch of the law which, these days, through e-commerce and otherwise, increasingly has a cross-border reference extending even to international business transactions. (A) Markesinis Prelims 2/2/06 13:27 Page viii viii FOREWORD In addition, just as a cathedral is more than the sum of the stones used to build it, and a symphony is more than the sum of its notes employed to compose it, a particular statute is more than the sum total of its paragraphs. It is the idea behind the law, the aspiration for justice connected with the law, which has to be understood if one wishes to master it. The law of obligations is a field of law in which the cultural and social convictions of a nation are particularly clearly manifested, for instance where the binding character of obligations which have been entered into, the meaning of ownership, the freedom of the individual are concerned. It is precisely for this reason that this work by Sir Basil Markesinis, Dr Hannes Unberath and Mr Angus Johnston is so important. For, using the comparative method it goes beyond a mere description of the subject matter, making it possible not only to learn the German law of obligations but also leading to its deeper understanding. In their set task, the authors have thus done a truly magnificent job. Professor Dr Günter Hirsch President of the Bundesgerichtshof Karlsruhe, 29 July 2005 (A) Markesinis Prelims 2/2/06 13:27 Page ix Preface to the Second Edition This is a book primarily about the German law of contract as seen by a German lawyer with a deep understanding of English law, a common lawyer with a keen interest in European law in general and German law in particular, and a comparative lawyer who has spent over thirty-five years of his professional life trying to develop a satisfactory method of presenting ‘foreign’ law to ‘national’ lawyers. Our approach to our topic is thus both different and similar. Different, since our different optics initially revealed different things to each of us as we studied the rich and complex material; similar, since our aims are the same. Prime among these has been the desire to make the richness of German legal experience available to anglo-phone jurists and, additionally perhaps, make German lawyers reflect on their own law on the basis of the impression it creates to outsiders. For, just as importantly, we all share the view that an important aim of studying law comparatively is to enhance the knowledge of the foreign system that is being studied but also to deepen the understanding of the system which the reader regards as his own. Value judgments about German law (or, conversely, Anglo-American law) have thus been omitted as having no place in a work such as this except where we felt that the reader might be helped to rethink his own ideas and solutions by being presented with the (subjective) preferences of the authors. Designing the structure of this book has not been easy. What one of us has described as ‘the art of packaging’ has been practised extensively throughout its long text. Nowhere however have we consciously distorted the German rules or betrayed their spirit solely in order to make the complex material easier to absorb by ‘foreign’ readers. On the contrary, the point made here, reappears many times in the text in the form of warnings as to how our presentation departs from the traditional, German pattern thus emphasising to the reader the difficulties which were all-too-obvious to us as authors. This work is thus not only a book about the law of contract of an old, highly rational, and politically important legal system—the German; it is also a practical exercise in comparative methodology in line with what one of us has been writing and teaching for nearly forty years now. The book is the natural successor of a work first conceived with Professor Dr Werner Lorenz of the University of Munich and which appeared in 1997 under the imprint of the Clarendon Press of Oxford University. Since Professor Lorenz was prevented from becoming involved in the preparation of the second edition, his widely admired modesty led him to insist that his name did not appear even on the cover page as was originally the intention and desire of the other authors. But Professor Lorenz’s influence on comparative law and German law is too important to go unnoticed so all of us, having in differing ways and degrees benefited from his works and advice, gladly pay tribute to the man and scholar. The Munich Institute, which once had the great Max Rheinstein as its librarian and was made world famous by Professor Lorenz’s long stewardship, has been an intellectual home for two of the three authors of this (A) Markesinis Prelims x 2/2/06 13:27 Page x PREFACE TO THE SECOND EDITION work and both proudly declare their allegiance to it as well as their gratitude to its able current Librarian Herr Rolf Riss. But the book, as even a cursory look at the table of contents will show, is not simply a second edition but an entirely re-cast and largely rewritten account of the German law of contract necessitated by many factors, not least of which was the ‘grand reform of 2001.’ In preparing this edition the ‘senior’ author had the benefit of working with younger colleagues whom, not that long ago, he fondly regarded as ‘favourite pupils’. Years later, his admiration for their learning and balanced judgment is such that he invited both of them to become involved with two (different) books of his. In the case of the present work their contribution has been such that he feels it is only fair to state that he should no longer be treated as the ‘senior’ author of this book (though it is, in its essentials his brainchild), but simply the ‘oldest’ of the three! Thus, the immense and erudite work put into this edition by Dr Unberath as well as Mr Johnston’s learned and equally wide-ranging contribution, are not only noted for the record but also gratefully acknowledged. Notwithstanding the above, however, responsibility for the present edition is fully shared by all of us. For we took advantage of the marvels of computer technology and in a literally ‘colourful’ way put our individual imprint on a text which took longer than expected to emerge as we grappled to assess as best we could the effects of the recent law reform in Germany and then compare German law with English (and to a lesser extent, American and French law). By the way, the recent vintage of the codal text should also explain the relative paucity of ‘new’ decisions (at the highest level). When this case law begins to appear in significant numbers, it may-well require a significant rewrite of this account. But that will be the task of a third edition! This book, along with its companion volume The German Law of Torts. A Comparative Treatise, co-authored by Basil Markesinis and Hannes Unberath and now in its fourth edition, was originally intended primarily as a student textbook. This largely remains our primary audience. But, following the growth (in sophistication and detail) of the treatment provided by the first volume, the title of the book changed in the fourth edition from A Comparative Introduction to a Comparative Treatise. Since the same (fairly) detailed treatment can also be found in this work, the same designation has been deemed appropriate for its own sub-title. Yet there is a further reason why the word ‘treatise’ may not be entirely inappropriate in the subtitle. For, in accordance with the declared crusade of the first of the authors, fully espoused also by the co-authors of this volume, a secondary aim of this work is to provide inspiration and, where appropriate, a guide to Common law practitioners and judges. There are some signs of a trend beginning to develop ‘gently’ in England and, perhaps, more so in other common law jurisdictions, judges being willing to look at foreign law for inspiration, especially where their own law is not settled or the problem they are facing is truly international and calls, perhaps, for a common approach to solve it. How far this trend will gain momentum is anyone’s guess, lawyers being notoriously conservative creatures reluctant to experiment with foreign ideas, particularly if they come from a system with a different language. Nonetheless, Europeanisation and globalisation, alluded to in the first (and other chapters) of this book, is having its effect, the law of contract of national states not escaping the impact of foreign pressures and calls for greater harmonisation if not unification. (A) Markesinis Prelims 2/2/06 13:27 Page xi PREFACE TO THE SECOND EDITION xi A book as detailed as this has, evidently, taken advantage of the learning of others. In keeping with the style of The German Law of Torts its references being limited (and included in parentheses in the text) thus do not do full justice to the extent of our intellectual debts. This is partly rectified by the inclusion of reading lists giving suggestions for further study as well as a list of often used works which are given in an abbreviated form and are mentioned at the beginning of the book. In addition to this impersonal acknowledgment, however, we also wish to thank a number of colleagues. Their names are given simply to express our gratitude but not in order to saddle them with opinions or imperfections that still remain in this book. Thanks are thus due to (in alphabetical order): Mr John Armour, Mr Stefan Arnold, Dr Matthew Conaglen, Professor Dr Stephan Lorenz and Professor Dr Gerald Mäsch. We are also deeply grateful to Professor Mark Gergen, of the Law School of the University of Texas at Austin, and Sir Roy Goode, QC, FBA, Emeritus Professor of English Law at the University of Oxford for reading an early version of the manuscript and generously giving us the benefit of their comments upon our text. A different but, in one sense, even greater debt is owed to Kurt Lipstein, Tony Weir and Raymond Youngs for translating the bulk of the decisions of the German courts reproduced in this work. Co-authors of this work all but in name, as well as key translators of the texts found in its companion volume, they have performed a complex task magnificently and rendered a huge service to German law as well comparative law in general. The art of translation calls for very special skills and sensitivities which they all possess to the full. But since these skills also differ greatly from one person to another, we have refrained from attempting to impose any uniformity. The reader can thus choose his preferred style but, above all, appreciate the enormity of the task here undertaken. German jurists impress by their logical analysis and (often) pulverise intellectual opponents into submission by means of structured and lengthy arguments and endless footnotes which ooze erudition. But they do not always beguile the mind nor touch the soul in the way that French juristic writing can–witness, for instance, that of the late Jean Carbonnier, and before him Georges Ripert, and before him Jean Marie Portalis. Our task was thus not just to describe the German law of contract but also to try and strip the heaviness of German legal scholarship of the outer layers which can make it so off-putting to those who do not know how to handle it. If our approach has worked, and it is for our readers to judge whether we have succeeded or not, we will have repaid an intellectual debt we all feel we owe to German legal thought but also shown AngloAmerican readers why such giants of the common law as Oliver Wendell Holmes, Roscoe Pound, Karl Llewellyn, Sir Frederick Pollock, William Maitland, and Sir William Anson held the German system and its Code in such high esteem. We have endeavoured to state the law as it was at the end of the calendar year 2004 but it is in the nature of such comparativ...
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