The Code, the Courts, and the Law Prior to Codification

All in all, we get an overwhelming sense of continuity of development.²¹’’ The BGB itself was based on the results of a nineteenth-century scholarship that had been inspired by Savigny's Historical School.

Being the fruit of great legal thought, it was characterized by its intellectual maturity, outstanding craftsmanship, and an admirable sense of legislative self-restraint.²¹⁶ It left considerable room for further development by courts and legal writers. If, then, the BGB may indeed be regarded, largely, as a restatement of contemporary legal doctrine,²¹⁷ it was both right and natural for the Imperial Court to pick up the thread of its pre-1900 precedents and to interpret the Code in terms of the law which the latter attempted to restate. But the great achievement of the Court even in the early years of the century was that it continued to do what it had done under the old legal regime: to specify, supplement, and modify the law, i.e. to develop it in accordance with the perceived needs of changed times. Of course, it did not openly rebel against the law. But the Court made full use of the tools available for developing the law intra and even praeter legem²™ Among these tools, of course, were doctrinal negatoria und Aufopfeningsanspruch: Nachbarliche Nutzungskonflikte in der Rechtsprechung des 19. und 20. Jahrhunderts', in Falk and Mohnhaupt (n. 20) in preparation (on the legal relationship and the liability between neighbours: from about 1882 there was a new line of development, initiated by the Imperial Court, which developed its own momentum and was not much affected by the Code); Ulrich Falk, 'Zur Sittenwidrigkeit von Testamenten', in Talk and Mohnhaupt (n. 20) in preparation (on testaments that were held to be contra bottOS MOHS: 'The disruption created by the Code was, if one looks more c losely, rather insignificant in many areas.

The continuities, both open and latent, with the case law and doctrine of the later commune were often more marked'; sub III. 5); Filippo Ranieri, 'Kaufrechtliche Gewährleistung und Irrtumsproblematik: Kontinuität und Diskontinuität in der Judikatur des Reichsgerichts nach 1900', in Falk and Mohnhaupt (n. 20) in preparation (on the relationship between the remedies for latent defects and mistake; Ranieri demonstrates that a decision of the Imperial Court from 1905—RGZ 61, 171—decisively determined the course of the law for the remainder of the century and that the V. Division of the Imperial Court picked up the thread of its own case law from the period before the enactment of the Code). Cf. also Christoph Seiler, Vein allgemeinen Landrecht zinn Bürgerlichen Gesetzbuch (1996).

²¹⁶ See Zimmermann (n. 17) 14 f. with further references.

^2I' See supra p. 55 (n. 13); cf. also p. 17 (n. 69).

^2,e Cf. also, e.g., Klaus Luig, 'Richter secundum, praeter or contra BGB? Das Beispiel der Sicherungsübereignung', in Falk and Mohnhaupt (n. 20) in preparation.

crutches like implied terms or fictitious contracts: crutches which had been used before, by the Imperial Court as well as by courts in other countries.²¹⁹ Of course, the pressure for change picked up the older the Code became. But it is surprising to see for how many of our modern legal doctrines, developed in response to this pressure, the Imperial Court laid the foundations within the first two decades of its existence. 'Positivistic narrowness' is not the right label for this attitude.

If, then, the BGB merely constitutes a transitional stage within an ongoing tradition,²²⁰ it is entirely unnatural to regard 1 January 1900 as a kind of cut-off point separating past and present. In the first place, the BGB itself has become a historical document. It is a text enacted at a time that was vastly different from ours. It has become enveloped by thick layers of case law and by a large range of sophisticated legal doctrines with often only scant support in its wording.

Thus, the BGB has to be studied not only as an authoritative but also as an historically conditioned document. It is based on evaluations which may be different from ours. Courts and legal writers have had to find answers to entirely new and unforeseen legal problems; they have had to adjust the law to changed social and economic conditions and to bring it into line, after 1949, with the value system contained in the Basic Law (Grundgesetz). But they had to do so by applying, or developing, the Code and on the basis of the thinking patterns inherited from the past. They did not arbitrarily and autonomously fashion the new legal world; they did so 'in

^2,9 I have attempted to demonstrate the usefulness and versatility of the notion of an implied condition, or conditio tacita, in English and continental contract law in (1993) 193 AcP 121-73.

²²¹¹ Cf. also, e.g., Theo Mayer-Maly, ‘Die Wiederkehr von Rechtsfiguren’, 1971 /Z 3; Helmut Coing, in Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, vol. i (12th edn., 1978), n. 113; Joachim Rückert, 'Savignys Einfluß auf die Jurisprudenz in Deutschland nach 190tr, in Heinz Mohnhaupt (ed.), Rechtsgeschichte in den beiden deutschen Staaten (1991), p. 44; Rolf Knütel, 'Romisches Recht und deutsches bürgerliches Recht', in Walther Ludwig (ed.). Die Antike in der eum/vfischeit Gegenwart (1993), 64; idem, 'Rechtseinheit in Europa und romisches Recht', (1994) 2 ZEuP 265.

indissoluble community with the past'.^[289] They were still part of an 'ongoing' tradition.^[290] We, loo, therefore will only be able to understand our present legal condition by adopting a historical perspective. But, and this is the second point, the past which still determines our modern legal condition did not begin with the BGB. Many 'modern' developments originated prior to the enactment of the Code and were hardly affected by (hat event. Often, however, the continuities reach back much further. Both the BGB and the case law after its enactment are firmly anchored in the ins commune which in turn is based on Roman law. 'Comprehension of the vital connection that lies the present to the past':^[291] any such endeavour will therefore have to start with Roman law.

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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

The Code, the Courts, and the Law Prior to Codification

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