32 Quod raro fit, non observant legislatores: A Classical Maxim of Legislation[1010]
ANDREAS WACKE (COLOGNE)
The law does not take note of that which occurs seldom. Instead, the law fulfils its task by regulating typical cases. This is a remark made by the Emperor Justinian (NovJ 94.2), who relied on an ancient wisdom.
The classical jurists attribute this idea to Theophrastus1 (372-288 BC), a pupil and follower of Aristotle. Apart from his versatile philosophical work, he wrote a significant book comparing the contemporary laws that were known to him. Even though this work has unfortunately been lost since the fourth century AD, in the few fragments that are preserved Theophrastus proves himself to be almost on a par with the great Roman jurists.2THE BIRTH OF MORE THAN ONE CHILD AT A TIME
Theophrastus was of the opinion that the legislator, in drawing up his legislaÂtive programme, may disregard remote individual cases that will occur only once or twice at most. The legislator should focus his attention on that which occurs usually and may disregard that which lies beyond all expectation. The Roman jurists discuss the imminent possibility of more than one child being born at a time as an example of what should be borne in mind by the legislator in drawing up his catalogue of possibilities.[1011] What portion of the rights over an inheritance may an heir who is already active claim (when the inheritance is in danger of being lost through the running of prescription, for example) if the deceased’s widow is pregnant at the time of his death and the birth of one—or even more—co-heirs should be taken into consideration?[1012] Aristotle taught (and this was known to the Roman jurists), that up to five brothers and sisters can be born at a time since the womb is capable of producing a maximum of that numÂber. However, this would very seldom be the case. In the ancient world, sensaÂtional reports concerning the birth of quintuplets did indeed circulate in the area of the Mediterranean.
A mother by the name of Serapis from Alexandria in Egypt, who accomplished this, travelled to Rome where the Emperor Hadrian admitted her to an audience. Augustus erected a statute in honour of a female slave belonging to his domestic servants who gave birth to five sons. Later, there is even a report from Egypt of the birth of septuplets (which was not considered by Aristotle).In the light of these various possibilities, the majority opinion of the jurists regarding the question took a middle course: provision should be made for the birth of triplets since that was not beyond all probability. For that reason the heir who is already alive should provisionally be allocated one-quarter of the inheritance. If fewer children were born, the portion that was reserved for the remaining heirs proportionally accrues to him. However, should more unexÂpectedly be born, his share is proportionately decreased (D. 5.4.4). The knowÂledge of the triplet brothers in the senatorial family of the Horatii who went to war together contributed to this compromise opinion. However, the birth of more than three children was also regarded as an unnatural and a bad omen (portentum) (especially in view of their slim chance of survival).
Yet, evaluated critically in the light of modern statistical data, the acceptance of the possible birth of triplets appears as excessively cautious. The probability of more than one child being born at a time decreases in geometrical order equal to the power of the basic number 88. In numerical terms one out of 88 births will be twins, triplets will be one out of 882 = 7744, quadruplets 883 = more than 680,000: quintuplets however account for only one in 884 = more than 50 milÂlion births.[1013] Even today, the birth of quintuplets is such a rare occurrence, that the daily newspapers give it extensive cover.[1014]
Our BGB7 provides for the succession while making allowance for the possible eventuality of more than one child being born at the same time.8 Contrary to the Prussian ALR9 (which also deals with miscarriages and hermaphrodites, ALR 1 I 17-18, 19-23), the BGB does not contain an explicit provision regarding twins.10 Indeed, concerning the claim for maintenance of an heir against the mother to be, BGB, para.
1963 explicitly provides: “In determining the share of the inheritance, it is accepted that only one child will be born. In accordance with the motives that underlie this provision, it is not necessary to provide for the birth of twins in view of the relative rarity”.11 Accordingly, even the birth of twins (with its statistical probability of close to 1 per cent), is in the opinion of the drafter of the BGB too remote a possibility for the legislator to provide for specifically. The acceptance that only one child will be born is the normal one: consequently, this point of departure accords better with the meaning of Theophrastus.12THE MIDDLE AGES
Our adage also appears under the Reglas del Derecho at the end of the Siete Partidas of Alfonso X of Castile (1265), the most important monument of medieval Roman legislation.13
some of them died soon as a result of weakness. The fertility physicians have instituted a (juridically problematical) solution, that is to abort, in other words to kill, some foetuses so as to increase the possibility of survival of the remaining ones.
7Burgerliches Gesetzbuch: the German Civil Code.
8 If the portions of the inheritance are not certain the settlement between co-heirs is excluded until the uncertainty has been terminated (BGB, para. 2043; likewise Swiss ZGB, art. 605). An estate debtor may only perform to all the heirs jointly, and each co-heir may (contrary to the position in Roman law) only claim performance for the benefit of all the heirs (BGB, para. 2039). However, a curator may be appointed for the unborn child (BGB, para. 1912), who will of necessity represent all the children if more than one child should be born.
9Allgemeines Landrecht fur die preussischen Staaten.
10 The general part of the draft code by Gebhard (reprint W Schubert (ed), 1981) para. 42, conÂtains a provision modelled on the Prussian ALR that was however regarded as superfluous, see Begr.
vol. 1, 387. The authors of the Italian Codice Civile likewise regarded such a provision as unnecesÂsary, see Novissimo Digesto Italiano XII (1965) article iiParto plurimo”. According to the ALR, I 1 paras 14-16, twins basically have identical rights. As far as the right of the firstborn is concerned (according to primogeniture), the question was settled by determining who was born first, or, if necÂessary, by lot. Contrary to that, an older theory oddly awarded the right of the first born to the child that had been born last, since that child was regarded as first conceived. Physicians only recently disÂcovered that it is not possible to prove that the first born had been later conceived.11 Mugdan, V 420. Even where it is expected for certain that twins will be born, the expectant mother is only entitled to a single portion of the inheritance: Munchener Kommentar-Leipold BGB, para. 1963 Rz. 8 at the end. Since only one birth takes place, the expenses until birth are not higher.
12 The legal principle in terms whereof the heir's right to the inheritance is proportionally decreased (see D. 5.4.4, supra, text before n.5) if more than one child were born was especially useÂful if in that case it had been established beforehand that only one child would be born. This was according to the minority opinion of the Proculians, in contrast with the prevailing view of the Sabinians. The ancient jurists do not consider the modern possibility of a medical investigation of a pregnant woman (with the aid of the heartbeat of the embryos) in the light of the possible birth of more than one child at a time.
13 M Scheppach, Las Siete Partidas; Entstehungs- und Wirkungsgeschichte (Pfaffenweiler, “Aun dixeron que non se deuen fazer las leyes, si non sobre las cosas que suelen acaescer a menudo. E porendo non ouieron los antiguos cuydado de las fazer sobre las cosas que auinieron pocas vezes, porque tuuieron que se podria judgar por otro caso de ley semejante que se fallasse escrito”.14 (Partida 7, Tit 34 (second last) Regla 36)
[“They [the Roman jurists] also said that one should make a law only with regard to those things which happen frequently.
Therefore, the ancients did not care for laws concerning events that occur seldom, since they were of the opinion that these cases could be decided in accordance with other provisions of an identical written statute.”]According to Arias Bonet, the Castilian legislator in formulating his Reglas del Derecho relied on the preparatory work done by the Glossators, more specifÂically by Bulgarus.15 Both Bulgarus and the Glossa ordinaria16 cite as an examÂple the Biblical miracle of Lazarus who had spent three days in the grave before Jesus raised him from the dead (John 11, 43). No earthly legislator needs to proÂvide for divine miracles. After the analogy of the ius postliminii, in terms whereof a Roman citizen who had been taken hostage by the enemy had to be restored into all his former rights, a person returned from the dead should also recover all his former property. This is a sensational example of a procedere ad similia, and consequently also of a conclusion from analogy, as is prescribed by Regla 36 (in fine), a method which Julian cites in D. 1.3.12.
MODERN CODIFICATIONS
The aim that the BGB should not be burdened with extremely exceptional proÂvisions is always present in the discussions.17 The filling of lacunae is intentionÂally left to development through legal science and practice. Separate matters are left (with the advantage of facilitating their potential modification) to be dealt with either in ordinances (for instance concerning liability for defects of cattle
1991). On its history, see also briefly, A Moras, Die Entwicklung des spanischen Zivilprozefirechts (Tubingen, 1994) 38. On its reception in Northern America (especially California and Lousiana), see McCaffery, “Las Siete Partidas en la jurisprudencia del Estado norteamericano” (1989) Revista de Derecho privado 938.
14 In the orthography I follow the glossed edition by Gregorio Lopez (Salamanca, 1555; repr. Madrid, 1974). Arias Bonet, infra n.15, 185, slightly differs in this regard.
The Latin gloss in the marÂgin reads as follows: “Non debent leges fieri nisi super frequenter accidentibus: unde nec factae sunt super casibus raro contingentibus”.15 J A Arias Bonet, “Las reglas del Derecho de la septima Partida”, (1978) 48 Anuario de Historia del Derecho Espanol 166, at 185.
16 Gloss on D. 50.17.64: “Ea quae raro accidunt, non temere in agendis negotiis computantur”. [“Those things which occur rarely are not lightly to be reckoned with in the conduct of affairs.”]
17 On the avoidance of case law and the courage (usually) to permit lacunae as a basic characÂteristic of the BGB, see: H H Jacobs, Wissenschaft und Gesetzgebung im Burg. Recht (1983) 145. An example also in Wacke, Neue Juristische Wochenschrift (1969) 1850. Alternatively (after the analÂogy of the application of BGB, para. 851 in the sphere of unjust enrichment) Mugdan II 1168. Concerning simplicity as a leading principle of legislation see in general C Schott, (1983) 5 Zeitschrift fur Neuere Rechtsgeschichte 121. sold) or by subordinate statutes of a federal Land.[1015] The Swiss ZGB[1016] of 1907 is even more consistent in avoiding unimportant provisions. It contains less than 1,000 sections (to this must be added, however, the law of obligations and comÂmercial law, which is dealt with in a separate code with close on 1,200 sections); each section does not contain more than three sub-sections and each sub-section comprises possibly only one sentence.[1017] Its brevity and precision stand in signifÂicant contrast to the detailed case law of the Prussian ALR of 1794 which conÂtains approximately 20,000 paragraphs.[1018] Between these two extremes, the BGB occupies a middle position.
In the final analysis, in estimating the comprehensiveness of the rules that should be maintained in drafting legislation, it boils down to a basic question as to the style that should be employed. All the great drafters of legislation have pondered this question.[1019] Despite various answers, the undeniable knowledge that no code will be able to satisfy the requirement of completeness and absence of lacunae is dominant.[1020] In addition, the inclusion or exclusion of a legal rule at times depends on fortuitous historical facts. Accordingly the drafter of the BGB considered it necessary to include four paragraphs on the law relating to bees (paras 961-4), whereas the statute of 1894 covering sales by instalment, which applied to a large number of economically weak clients, was treated as an exceptional institution and not considered worthy of inclusion in the BGB. The comprehensive nature of a rule should not necessarily go proportionally hand in hand with the social relevance of an institute that is covered by a law. New social factors may also bring about an unexpected need for legislative intervenÂtion (one need only refer to the modern de facto marriage). Changed business practice could supersede established legal transactions (such as, for example, the fiducia cum creditore in the creditor’s possession, which was de facto replaced by the pledge over movable property which remains in the possession of the debtor, contained in BGB, paras 1204ff; also, the treatment in a rudimentary and fragmentary manner of the retention of ownership and inchoate right in BGB, paras 455 and 158 are far from corresponding with their real diffusion in practice).
The conclusion from analogy, which the legislator explicitly or tacitly comÂpels the person applying the law to use (such as the Siete Partidas or para. 7 of the Austrian ABGB,[1021] see also art. 1 of the Swiss ZGB), prohibits the strict appliÂcation of the rule expressio unius est exclusio alterius, since, according to this rule, the fact that a specific case is mentioned implies that the rule may not be applied in other cases—a reversed conclusion.
In future, computer-driven legal searches may require more complete legal rules since no computer can be relied on to make a conclusion from analogy. If a law contains lacunae which cannot be interpreted by means of the usual hermeneutical tools, the person applying that law may, however, work with traÂditional legal rules that existed prior to that law (and which were not expressly revoked by the law itself).[1022]
Our maxim does not apply in the case of security precautions relating to transport businesses and technical industries (such as nuclear reactors or chemÂical plants). Regulations that aim to prevent accidents should be mindful of the worst-case scenario. These regulations must be complete to such a degree that even catastrophes that are completely improbable, and which will happen only as a result of the coincidence of unfortunate factors, are also included. To this end the legislator needs a prophetic and visionary foresight. Industrial accidents that may nevertheless happen should compensate the general public through strict liability. However, in the case of liability without fault our legal practice does not yet recognize the drawing of a conclusion by analogy from a statutory provision to cases not yet covered in a law.[1023]