4. Summary

If one attempts to summarize what has been said so far, the following picture emerges. It can no longer be main­tained—not, at least, as far as the law of delict is concerned—that the practice of the Imperial Court during the early years under the BGB was characterized by posi­tivistic narrowness in the application of the Code.

^,(M Judgment of 8 Oct. 1917 (VI. Division).

^w’ Kleindiek (n. 72) 346. terms of § 823 1 BGB was extended at an early stage. The judges adhered to the principle established by the Code that the patrimony as such did not enjoy protection. But they soon began to relax the rigour of this principle by recognizing (lawful) possession and the right to an estab­lished and operating business as 'other rights of another'. Secondly, even in 1902 already the Imperial Court effectively relied on the concept of Verkeltrssicherungspflicht which was not mentioned in the Code. And thirdly the Court soon began to circumvent the unsatisfactory provision on delict­ual liability for others, both by greatly extending the range of contractual liability and by an extensive interpretation of § 31 BGB which was no longer reconcilable with the inten­tions of the draftsmen of the Code.

Of course, there were also areas where the Imperial Court fairly strictly adhered to the intentions of the drafts­men as they had found expression in the Code. This is true, in particular, for the protection of a person's personality. But one can hardly regard this as an extraordinarily posi­tivistic approach. The relevant provisions of the Code were so clear, in this respect, that recognition of a general right to the protection of a person's individual sphere of life would have constituted an unprecedented and impermissible rebellion against the law.

Interestingly, where the Imperial Court transformed the law of delict, we usually find a continuity reaching back to the law prevailing prior to the enactment of the Code. The right to an established and operating business provides a telling example for it had been recognized by the Imperial Court before 1900. Delictual protection of possession had also been advocated before 1900, though it had not yet been accepted by the Imperial Court. The case law on Verkehrssicherungspflichten organically built upon precedents established under nineteenth-century Aquilian liability. Only the attempts to circumvent the restrictions with which liability for others was fettered may be described as bold innovations. They were, however, inspired by a widespread dissatisfaction with the rule of § 831 I BGB. It was a rule outmoded even in 1900 and out of tune with the liability regimes in other European countries.