'Positive' Breach of Contract[252]

(b) The Right to Withdraw front the Contract

There was, however, an additional twist to Staub's theory.^[263] The claim for damages in cases of deficient performance was not new; Staub merely wanted to provide it with a proper doctrinal foundation under the Code. But he also argued that, under certain circumstances, the aggrieved party should have the right to withdraw from the contract.^[264] This was new. Until the end of the nine­teenth century, contract doctrine under the German ins commune had preserved the general rule of Roman law excluding any right of unilateral withdrawal from a contract.^[265] The General German Commercial Code of 1861 had broken with this doctrine in cases of mora debitoris (delay on the part of the debtor).^[266] The draftsmen of the BGB followed suit and transplanted this successful innova­tion from commercial into the world of general private law.^[267] But it was only in cases of mora debitoris and super­vening impossibility that the aggrieved party was granted a right to withdraw from the contract. Extension of this right to cases of deficient performance had certainly not been envisaged by the draftsmen of the Code;^[268] this was the point where Staub's doctrine entailed a change in the law. In spite of its allegedly positivistic attitude, the Imper­ial Court immediately implemented that change, this time expressly referring to Staub's article and endorsing his concept of 'positive malperformance'.^[269]

Once again, therefore, we see, how little the development of the law was affected by the Code. The Court, on the one hand, continued to grant a claim for damages in cases of deficient performance in spite of the fact that this claim did not find a specific endorsement in the Code. On the other hand, it was prepared boldly to extend the range of sanc­tions available in these types of cases. The Court thus actively continued a line of development which had started in the commercial law of the latter half of the nineteenth century, and within which the BGB was hardly more than an episode. It is likely, moreover, that the judges of the II. Division of the Imperial Court,¹⁹⁴ when they handed down the decision in RGZ 54, 98, were very much aware of the general provision of art. 1184 code civil ('La condition reso- lutoire est toujours sous-entendue dans les contrats synal- lagmatiques, pour le cas où l'uno des deux parties ne satisfera point à son engagement')¹⁹⁵ which they had hith­erto had to apply. Staub's theory was most welcome in this situation to prevent them from having to take what would have appeared to them as a retrogressive step.¹⁹⁶

5.