Bürgerliches Gesetzbuch
Encyclopedia
The Bürgerliches Gesetzbuch (or BGB) is the civil code
of Germany
. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project.
The BGB served as a template for the regulations of several other civil law
jurisdictions, including Portugal
, the Republic of China
, Japan
, Thailand
, South Korea
, People's Republic of China
, Greece
and Ukraine
.
The introduction in France
of the Napoleonic code
in 1804 created in Germany a similar desire for obtaining a civil code (despite the opposition of the Historical School of Law
of Friedrich Carl von Savigny
), which would systematize and unify the various heterogeneous laws that were in effect in the country. However, the realization of such an attempt during the life of the German Confederation
was difficult, for the appropriate legislative body did not exist.
However, in 1871, the various German states were united into the German Empire
. In the beginning, civil law
legislative power was held by the individual states, not the Empire (Reich) that comprised those states. An amendment to the constitution passed in 1873 (called "Lex Miquel-Lasker" - referring to the amendment's sponsors, representatives Johannes von Miquel and Eduard Lasker) transferred this legislative authority to the Reich. Various committees were then formed to draft a bill that was to become a civil law codification for the entire country, replacing the civil law systems of the states.
A first draft code, in 1888, did not meet with favour. A second committee of 22 members, comprising not only jurists but also representatives of financial interests and of the various ideological currents of the time, compiled a second draft. After significant revisions, the BGB was passed by the Reichstag
in 1896. It was put into effect on January 1, 1900 and has been the central codification of Germany
's civil law ever since.
, there were plans to replace the BGB with a new codification that was planned to be entitled "Volksgesetzbuch
" ("people's code"), which was meant to reflect Nazi ideology better than the liberal spirit of the BGB, but those plans did not become reality. However, some general principles of the BGB such as the principle of bona fides (§ 242 BGB, "Grundsatz von Treu und Glauben") were used to interpret the BGB in a Nazi-friendly way.
state in the West and a socialist
state in the East after World War II
, the BGB continued to regulate the civil law in both parts of Germany. Step by step, however, the BGB regulations were replaced in East Germany by new laws, beginning with a family code in 1966 and ending with a new civil code (Zivilgesetzbuch) in 1976 and a contract act in 1982. Since Germany's reunification
in 1990, the BGB has again been the codification encompassing the civil law of entire Germany.
In western and reunited Germany, the BGB has been amended many times since it came into existence. The most important changes took place in 2002, when the law of obligations, one of the BGB's five main parts, was largely reformed. The way the courts construe and interpret the regulations of the code have changed in many ways, and continue to evolve and develop. This is particularly due to the high degree of abstraction throughout the code. In recent years lawmakers have tried to bring legislation on certain matters "back into the BGB" which had been ruled in separate acts. For example legislation on renting flats which had been transferred to separate laws like the "Miethöhengesetz" is now once again ruled in the BGB.
The BGB continues to be the centerpiece of the German Civil Law System. Other legislation relies on the principles set out in the BGB. Therefore in the German Commercial Code there are only the special rules for merchant partnerships and limited partnerships as the general rules for partnerships in the BGB also apply.
The system of the BGB is a typical concept of the 19th century and has met right from the start criticism for its lack of social responsibility. Lawmakers and legal practice have improved the system over the years to adapt the BGB in this respect with more or less success. Recently the influence of EU legislation is quite strong and the BGB has seen many changes due to this.
structure, derived from Roman law
: like other Roman-influenced codes, it regulates the law of persons, property, family and inheritance, but unlike e.g. the French Code civil or the Austrian Civil Code, a chapter containing generally applicable regulations is placed first. Consequently, the BGB contains five main parts ("books"):
Friedrich Carl von Savigny
, the code strongly differentiates between obligatory contracts as regulated by the second book of the BGB on obligations, and contracts on the actual transfer of property, particularly as they are regulated by the third book of the BGB on property. In short, the two principles state: having an obligation to transfer of ownership does not make you the owner, but merely gives you the right to demand the transfer of ownership.
The principle of separation states that contracts on the transfer of property and the actual transfer of property must be treated separately and follow their own rules. Also, the principle of abstraction states that the transfer of ownership is legally valid without regard for the legal validity of the obligatory contract. From this differentiation it follows that a mere obligatory sales contract does not transfer ownership, if and until the contract on actual delivery of the contract is not formed; conversely, the transfer of property following an invalid obligatory contract may give rise to an obligation of the transferee to restitute the property (compare unjust enrichment
), but until the property is retransferred, again by a separate contract on actual delivery , the property of the transferee is not affected.
A sales contract alone for example would under the BGB not lead to ownership on the side of the buyer, but merely give rise to an obligation by the seller to transfer ownership of the good in question. The seller is then, by obligatory contract, obliged to form another, and separate, contract on transferring the property. Only once this contract is formed, the buyer acquires ownership of the purchased good. Consequently, these two procedures are regulated differently: the obligations of the parties are regulated in sec. 433, the contract on actual transfer of ownership on a movable good on sec. 929. The payment of the purchase price (the transfer of ownership on the money) is treated likewise.
In day-to-day business, this differentiation is not needed, because both types of contract would be formed simultaneously by exchanging the good for the price. Although the principle of abstraction can be seen as overly technical to be contradicting the usual common-sense interpretation of commercial transactions, it is undisputed among the German legal community. The main advantage of the principle of abstraction is its ability to provide a secure legal construction to nearly any financial transaction, however complicated this transaction may be.
A good example is the well-known retention of title
. If someone buys something and pays the purchase price by installments, the system faces two conflicting interests: the buyer wants to have the purchased goods immediately, whereas the vendor wants to secure full payment of the purchase price. With the principle of abstraction the BGB has a simple answer to that: the purchase contract obliges the buyer to pay the full price and requires the vendor to transfer property upon receipt of the last installment. As the obligations and the actual conveyance of ownership are in two different contracts, it is quite simple to secure both parties' interests. The vendor keeps the rights to the property up to the last payment, and the buyer is the mere holder of the purchased goods. If he fails to pay in full, the vendor may reclaim his property just like any other owner.
Another advantage is that in the case of a defective treaty of sale the ownership remains effective and a resale is not involved. By the rules of unjust enrichment
the buyer is obliged to retransfer the ownership if possible or otherwise pay compensation.
Steht auf der Grenze ein Baum, so gebühren die Früchte und, wenn der Baum gefällt wird, auch der Baum den Nachbarn zu gleichen Teilen (If a tree stands on the border between two plots of land, the neighbours have equal rights to the fruit thereof and, if it is cut down, also to the tree).
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project.
The BGB served as a template for the regulations of several other civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions, including Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
, the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
, Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, Thailand
Thailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
, South Korea
South Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
, People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, Greece
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
and Ukraine
Ukraine
Ukraine is a country in Eastern Europe. It has an area of 603,628 km², making it the second largest contiguous country on the European continent, after Russia...
.
German Empire
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
of the Napoleonic code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
in 1804 created in Germany a similar desire for obtaining a civil code (despite the opposition of the Historical School of Law
German Historical School
The German Historical School of Law is a 19th century intellectual movement in the study of German law. With Romanticism as its background, it emphasized the historical limitations of the law...
of Friedrich Carl von Savigny
Friedrich Carl von Savigny
Friedrich Carl von Savigny was one of the most respected and influential 19th-century jurists and historians.-Early life and education:...
), which would systematize and unify the various heterogeneous laws that were in effect in the country. However, the realization of such an attempt during the life of the German Confederation
German Confederation
The German Confederation was the loose association of Central European states created by the Congress of Vienna in 1815 to coordinate the economies of separate German-speaking countries. It acted as a buffer between the powerful states of Austria and Prussia...
was difficult, for the appropriate legislative body did not exist.
However, in 1871, the various German states were united into the German Empire
German Empire
The German Empire refers to Germany during the "Second Reich" period from the unification of Germany and proclamation of Wilhelm I as German Emperor on 18 January 1871, to 1918, when it became a federal republic after defeat in World War I and the abdication of the Emperor, Wilhelm II.The German...
. In the beginning, civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
legislative power was held by the individual states, not the Empire (Reich) that comprised those states. An amendment to the constitution passed in 1873 (called "Lex Miquel-Lasker" - referring to the amendment's sponsors, representatives Johannes von Miquel and Eduard Lasker) transferred this legislative authority to the Reich. Various committees were then formed to draft a bill that was to become a civil law codification for the entire country, replacing the civil law systems of the states.
A first draft code, in 1888, did not meet with favour. A second committee of 22 members, comprising not only jurists but also representatives of financial interests and of the various ideological currents of the time, compiled a second draft. After significant revisions, the BGB was passed by the Reichstag
Reichstag (German Empire)
The Reichstag was the parliament of the North German Confederation , and of the German Reich ....
in 1896. It was put into effect on January 1, 1900 and has been the central codification of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
's civil law ever since.
Nazi Germany
In Nazi GermanyNazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
, there were plans to replace the BGB with a new codification that was planned to be entitled "Volksgesetzbuch
Volksgesetzbuch
The Volksgesetzbuch was the attempt of Third Reich jurists in the Akademie für Deutsches Recht to replace the Bürgerliche Gesetzbuch by a civil law code aligned with the principles of National socialism....
" ("people's code"), which was meant to reflect Nazi ideology better than the liberal spirit of the BGB, but those plans did not become reality. However, some general principles of the BGB such as the principle of bona fides (§ 242 BGB, "Grundsatz von Treu und Glauben") were used to interpret the BGB in a Nazi-friendly way.
Germany since 1945
When Germany was divided into a democratic capitalistCapitalism
Capitalism is an economic system that became dominant in the Western world following the demise of feudalism. There is no consensus on the precise definition nor on how the term should be used as a historical category...
state in the West and a socialist
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
state in the East after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the BGB continued to regulate the civil law in both parts of Germany. Step by step, however, the BGB regulations were replaced in East Germany by new laws, beginning with a family code in 1966 and ending with a new civil code (Zivilgesetzbuch) in 1976 and a contract act in 1982. Since Germany's reunification
German reunification
German reunification was the process in 1990 in which the German Democratic Republic joined the Federal Republic of Germany , and when Berlin reunited into a single city, as provided by its then Grundgesetz constitution Article 23. The start of this process is commonly referred by Germans as die...
in 1990, the BGB has again been the codification encompassing the civil law of entire Germany.
In western and reunited Germany, the BGB has been amended many times since it came into existence. The most important changes took place in 2002, when the law of obligations, one of the BGB's five main parts, was largely reformed. The way the courts construe and interpret the regulations of the code have changed in many ways, and continue to evolve and develop. This is particularly due to the high degree of abstraction throughout the code. In recent years lawmakers have tried to bring legislation on certain matters "back into the BGB" which had been ruled in separate acts. For example legislation on renting flats which had been transferred to separate laws like the "Miethöhengesetz" is now once again ruled in the BGB.
The BGB continues to be the centerpiece of the German Civil Law System. Other legislation relies on the principles set out in the BGB. Therefore in the German Commercial Code there are only the special rules for merchant partnerships and limited partnerships as the general rules for partnerships in the BGB also apply.
The system of the BGB is a typical concept of the 19th century and has met right from the start criticism for its lack of social responsibility. Lawmakers and legal practice have improved the system over the years to adapt the BGB in this respect with more or less success. Recently the influence of EU legislation is quite strong and the BGB has seen many changes due to this.
Structure
The BGB follows a modified pandectistPandects
The Digest, also known as the Pandects , is a name given to a compendium or digest of Roman law compiled by order of the emperor Justinian I in the 6th century .The Digest was one part of the Corpus Juris Civilis, the body of civil law issued under Justinian I...
structure, derived from Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
: like other Roman-influenced codes, it regulates the law of persons, property, family and inheritance, but unlike e.g. the French Code civil or the Austrian Civil Code, a chapter containing generally applicable regulations is placed first. Consequently, the BGB contains five main parts ("books"):
- the General Part ("Allgemeiner Teil"), sections 1 through 240, comprising regulations that have effect on all the other four parts, such as the regulation on persons, the capacity to form contracts, declaration of intent, rescission due to mistake, formation of contracts, limitation of actions and agency
- the Law of ObligationsLaw of obligationsThe law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
("Recht der Schuldverhältnisse"), sections 241 through 853, describing the various forms of contracts and other obligations between persons, including tortTortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
law - the Property LawProperty lawProperty law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
("Sachenrecht"), sections 854 through 1296, describing possession, property, other rights persons have relating to property (movable property and real estate), and how those rights can be transferred - the Family LawFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
("Familienrecht"), sections 1297 through 1921, describing marriage and other legal relationships among family members - the Law of SuccessionLaw of successionLaws of succession govern the order of succession to various monarchies. Some laws of succession include:-United Kingdom:*British succession**Act of Settlement 1701-France:*Kings of France**Salic law* Legitimist claimants to the throne of France...
("Erbrecht"), providing regulation for what happens to the belongings of deceased persons, including a Law of WillsWill (law)A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
.
The Principle of Abstraction
One particularly important and distinguishing element in the system of the BGB is the principle of abstraction (in German : “Abstraktionsprinzip”), and accompanying it, the principle of separation “Trennungsprinzip”). Derived from the works of the pandectist scholarPandectists
Pandectists were German university legal scholars in the early 19th century who studied and taught Roman law as a model of what they called Konstruktionsjurisprudenz as codified in the Pandects of Justinian ....
Friedrich Carl von Savigny
Friedrich Carl von Savigny
Friedrich Carl von Savigny was one of the most respected and influential 19th-century jurists and historians.-Early life and education:...
, the code strongly differentiates between obligatory contracts as regulated by the second book of the BGB on obligations, and contracts on the actual transfer of property, particularly as they are regulated by the third book of the BGB on property. In short, the two principles state: having an obligation to transfer of ownership does not make you the owner, but merely gives you the right to demand the transfer of ownership.
The principle of separation states that contracts on the transfer of property and the actual transfer of property must be treated separately and follow their own rules. Also, the principle of abstraction states that the transfer of ownership is legally valid without regard for the legal validity of the obligatory contract. From this differentiation it follows that a mere obligatory sales contract does not transfer ownership, if and until the contract on actual delivery of the contract is not formed; conversely, the transfer of property following an invalid obligatory contract may give rise to an obligation of the transferee to restitute the property (compare unjust enrichment
Unjust enrichment
Unjust enrichment is a legal term denoting a particular type of causative event in which one party is unjustly enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing.Definition:...
), but until the property is retransferred, again by a separate contract on actual delivery , the property of the transferee is not affected.
A sales contract alone for example would under the BGB not lead to ownership on the side of the buyer, but merely give rise to an obligation by the seller to transfer ownership of the good in question. The seller is then, by obligatory contract, obliged to form another, and separate, contract on transferring the property. Only once this contract is formed, the buyer acquires ownership of the purchased good. Consequently, these two procedures are regulated differently: the obligations of the parties are regulated in sec. 433, the contract on actual transfer of ownership on a movable good on sec. 929. The payment of the purchase price (the transfer of ownership on the money) is treated likewise.
In day-to-day business, this differentiation is not needed, because both types of contract would be formed simultaneously by exchanging the good for the price. Although the principle of abstraction can be seen as overly technical to be contradicting the usual common-sense interpretation of commercial transactions, it is undisputed among the German legal community. The main advantage of the principle of abstraction is its ability to provide a secure legal construction to nearly any financial transaction, however complicated this transaction may be.
A good example is the well-known retention of title
Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
. If someone buys something and pays the purchase price by installments, the system faces two conflicting interests: the buyer wants to have the purchased goods immediately, whereas the vendor wants to secure full payment of the purchase price. With the principle of abstraction the BGB has a simple answer to that: the purchase contract obliges the buyer to pay the full price and requires the vendor to transfer property upon receipt of the last installment. As the obligations and the actual conveyance of ownership are in two different contracts, it is quite simple to secure both parties' interests. The vendor keeps the rights to the property up to the last payment, and the buyer is the mere holder of the purchased goods. If he fails to pay in full, the vendor may reclaim his property just like any other owner.
Another advantage is that in the case of a defective treaty of sale the ownership remains effective and a resale is not involved. By the rules of unjust enrichment
Unjust enrichment
Unjust enrichment is a legal term denoting a particular type of causative event in which one party is unjustly enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing.Definition:...
the buyer is obliged to retransfer the ownership if possible or otherwise pay compensation.
Trivia
- No German law has a larger number of sections: The BGB ends with sec. 2385.
- Sec. 923 (1) BGB is a perfect hexameterHexameterHexameter is a metrical line of verse consisting of six feet. It was the standard epic metre in classical Greek and Latin literature, such as in the Iliad and Aeneid. Its use in other genres of composition include Horace's satires, and Ovid's Metamorphoses. According to Greek mythology, hexameter...
:
Steht auf der Grenze ein Baum, so gebühren die Früchte und, wenn der Baum gefällt wird, auch der Baum den Nachbarn zu gleichen Teilen (If a tree stands on the border between two plots of land, the neighbours have equal rights to the fruit thereof and, if it is cut down, also to the tree).
- Sec. 923 (3) BGB rhymes:
-
- Diese Vorschriften gelten auch | für einen auf der Grenze stehenden Strauch (The foregoing provisions are also valid for bushes standing on the border).
- Although several other laws are meant to deal with some specific legal questions which are deemed to be outside the scope of a general civil code, the highly specialised Bienenrecht (law of bees) is found within the property law chapter of the BGB (sections 961 - 964). This results from the fact that in legal terms in Germany bees become wild animals as soon as they leave their hive. As wild animals can't be owned by anyone, the said sections provide for the former owner to keep his claim over that swarm. But sec. 961-964 are usually described as the least important regulations in German law, with not a single decision of any higher court reported since the BGB entered into force.
- Diese Vorschriften gelten auch | für einen auf der Grenze stehenden Strauch (The foregoing provisions are also valid for bushes standing on the border).
External links
- English translation of the BGB (German Civil Code)
- German BGB by the German Ministry of JusticeFederal Ministry of Justice (Germany)The Federal Ministry of Justice is a federal ministry in Germany.Under the federal system of Germany, individual states are most responsible for the administration of justice and the application of penalties. The Federal Ministry of Justice devotes itself to creating and changing law in the...
, Books 1, 2, & 3 - Search the BGB
- BGB-Informationspflichten-Verordnung
- Civil law overview by the German Ministry of JusticeFederal Ministry of Justice (Germany)The Federal Ministry of Justice is a federal ministry in Germany.Under the federal system of Germany, individual states are most responsible for the administration of justice and the application of penalties. The Federal Ministry of Justice devotes itself to creating and changing law in the...
- Commentary on the BGB