3. From Justinian's scheme to the "Pandektensystem”

The opinion that actions and obligations really belong together was widely accepted in the Middle Ages;^[143] further support for it was found in two titles of the Corpus Juris, D.

44, 7 and C. 4, 10, which are both headed "De obligationibus et actionibus". Savigny still discussed it fairly extensively,^[144] even though in the wake of humanistic jurisprudence its weakness had already been exposed:

"Hoc autem falsam esse, vel ex uno hoc apparet, quod ista consideration non magis obligatio ad actiones pertinet, quam dominium, quam ceterum in rem jura, quam ipsum jus personae: quippe quae et ipsa singula suas actiones habent, et pariunt."^[145]

Of course, it was not only the appropriate position of the law of obligations which was a matter for dispute. In the 16th century both the lawyers of the humanist persuasion and, quite independently of them, the Spanish scholastics of the school of Salamanca had begun to move away in their expositions of the law from the so-called "legal order" (or rather, disorder), i.e. the sequence of topics as dictated by the Digest.^[146] Until the 19th century, private lawyers were to battle continuously with the difficulties of systematization,^[147] generally on the basis of Justinian's Institutes which had received increased attention.^[148] If, for instance, one looks at the great codifications produced around the turn of the 18th century, one still finds a tripartite division in both the code civil and the ABGB. But whilst the ABGB followed the system of Gaius fairly closely, turning the third book into some sort of general part dealing with provisions common to the law of persons (Book One) and things (Book Two), the code civil devoted its third book to "des differentes manieres dont on acquiert la propriete¹", (including, inter alia, succession, obligations and matrimo- niai property law!).^[149] Only with the acceptance of Georg Arnold Heise's celebrated five-membered scheme^[150] did the discussion finally die down; it came to be known as "Pandektensystem" and forms the systematic basis of the BGB: general part, obligations, things, family law and succession.

The differentiation between the law of obligations and things is, of course, of Roman origin, in so far as it represents the transformation into substantive law of the dichotomy between actiones in rem and in personam. It had been emphasized, for instance, by Grotius, who devoted the second book of his Inleiding to "Beheering" (defined as " 't recht van toe-behooren bestaende tusschen den mensch ende de zaecke zonder noodigh opzicht op een ander mensch"),^[151] the third to "Inschuld" (" 't recht van toe-behooren dat den eenen mensch heeft op den anderen om van hem eenige zahe ofte daed to genieten").^[152]-^[153] Family law owes its recognition as a separate systematic entity to the natural lawyers who based their systems on the double nature of man—as an individual and, at the same time, as a part of larger groups in society. They thus dealt first with rules relating to the individual as such (including, especially, the law of property) before then proceeding in widening circles to matters such as family law (which they separated from the law of persons), the law of companies and other associations, societas, public law and public international law.^[154] The position of the law of succession varied greatly. Quintus Mucius and Sabinus had placed it right at the beginning of their "ins civile". Then it was merged for a long time with the law of things as being one of the ways of acquiring ownership. If we today usually conclude our system with the law of succession, this tradition also dates back to the natural lawyers: with the separation of family law from the law of persons, the former began to exert a considerable attraction on succession, especially intestate succession.^[155] Persons, or rather what was left of it, remained right at the beginning of the system—not, however, as a separate entity but as part and parcel of the general part.

This "general part" is the truly distinctive feature of the "Pandekten- system"; it has left its mark not only on the BGB, but on the whole science of law in Germany (and all the systems influenced by German law).

To abstract and bring forth a body of general rules has great systematic advantages as well as severe inherent dangers.¹⁷³ It has a rationalizing effect and contributes to the scientific precision of legal analysis. On the other hand, comprehension of the law is rendered extremely difficult for someone not specifically trained in legal thinking. Thus, for example, the possibility of placing a person under guardianship is envisaged in § 6, but the details of the procedure are set out only in §§ 1896 sqq. Many of the general rules about the law of obligations are not, in fact, to be found in Book Two, but in the general part: how contracts are to be concluded, the effect of error or metus on the validity of contracts, etc. And if, for instance, one is dealing with the sale of some hinnies or pigs, one has to consult—the order being determined by the rule of lex specialis derogat legi general! — the special rules about the purchase of livestock, the more general (but still fairly special) rules given for the contract of sale, the general part of the law of obligations and, finally, the general part of the BGB. The general part is a child of legal formalism; legal philosophies based on social ethics are bound to reject this abstract,¹⁷⁴ technical and unconcrete way of structuring law and legal analysis. As far as, in particular, the BGB is concerned, additional criticism can be levelled at the content of its general part: for it does not contain rules about the basic principles of legal behaviour, about the exercise of rights in society,¹⁷⁵ principles of statute interpretation, the sources of law or the powers of a judge; instead, a variety of topics are included, which one should hardly expect there, such as the law of associations, foundations, extinctive prescription or the giving of security.

Yet, all in all, and even though it is not based on uniform principles of classification—whilst the law of things and the law of obligations are subdivided because the one deals with absolute and the other with relative rights, family law and succession are characterized as systematic entities by nothing but the simple fact that all rules relating to two areas of social reality have been put together¹⁷⁶—the "Pandektensystem" has become firmly engrained in German private law.

As a result, the law of obligations is today allocated an undisputed compartment of its own.

^I7' On the history, content and value of the general part, see Schwarz. (19211 42 ZSS 587 sqq.; Wieacker, Privatrechtsgeschichte, pp. 486 sqq.; Ernst Ziteimann, "Der Wert eines 'allgemeinen Teils' des bürgerlichen Rechts", (1906) 33 GrunhZ 1 sqq.; Philipp Heck, "Der allgemeine Teil des Privatrechts", (1939) 146 Archiv far die civilistische Praxis 1 sqq.; Gustav Boehmer, Ein?hrung in das bürgerliche Recht (2nd ed., 1965), pp. 73 sqq.; Bjorne, op. eit., note 164, pp. 250 sqq.

^m On the "German Abstract Approach to Law" and for comments on the system of the BGB, see Folkc Schmidt, (1965) 9 Scandinavian Studies in Law 131 sqq.

See, for example, art. 2 ZGB (Switzerland): Everyone must act in good faith in exercising his rights and performing his duties.

Cf., for example, Boehmer, op. cit., note 173, pp. 71 sq.

IV.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

3. From Justinian's scheme to the "Pandektensystem”

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