The German Law of Contract: A Comparative Treatise

1034 Pages·2006·3.57 MB·English

by  B. S. Markesinis

(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 BASIL MARKESINIS
HANNES UNBERATH
ANGUS JOHNSTON
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 NEHassalo Street
Portland, Oregon
97213-3644
USA
Tel: [phone] or toll-free: (1) 800 944 6190
Fax: [phone]
E-mail: [email protected]
Web Site: www.isbs.com
© 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:[phone] or Fax:[phone]
e-mail: [email protected]
WEBSITE: http//www.hartpub.co.uk
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 philo-
sophical 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 dif-
ferences appear from the authors’ skilful analysis, which they illuminate with refer-
ences 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 time-
honoured 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 cir-
cumstances 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 know-
ledge and understanding not only of one’s own law but also of others with which it
must be compared and blended.
(A) Markesinis Prelims 2/2/06 13:27 Page vi
vi FOREWORD
When stepping into the unknown or incompletely known, even the most conscien-
tious 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 num-
ber 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-fron-
tier trade can be taken into account in two ways. Either the national legislators mod-
ify 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 devel-
opment 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 cen-
turies 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 reg-
ulates 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 particu-
lar 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 charac-
ter of obligations which have been entered into, the meaning of ownership, the free-
dom 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 inter-
est 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 prac-
tical 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 pre-
vented 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 2/2/06 13:27 Page x
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 sim-
ply 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 judg-
ment 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.
Thislargelyremainsourprimaryaudience.But,followingthegrowth(insophistica-
tion 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,
thesame designationhasbeendeemedappropriateforitsownsub-title.Yetthereis
afurtherreasonwhytheword‘treatise’maynotbeentirelyinappropriateinthesub-
title. 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
andjudges.Therearesomesignsofatrendbeginningtodevelop‘gently’inEngland
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 for-
eign 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.