|Scope:||Federal Republic of Germany|
|Legal matter:||Private law|
|Original version from:||August 18, 1896
( RGBl. P. 195)
|Effective on:||January 1, 1900|
|New announcement from:||January 2, 2002
( Federal Law Gazette I p. 42 ,
ber. P. 2909 ,
ber. 2003 I p. 738 )
|Last change by:||
Art. 1 G of 10 August 2021
( Federal Law Gazette I p. 3515 )
|Effective date of the
|over July 1, 2022
(Art. 5 G of August 10, 2021)
|Please note the note on the applicable legal version.|
The Civil Code ( BGB ) is the central codification of German general private law , whereby citizens are understood in the sense of citizens ( civis ). The BGB regulates the legal relationships between private individuals and is thus different from public law . Together with its ancillary laws (for example the Condominium Act , Insurance Contract Act , Civil Partnership Act , General Equal Treatment Act ) it forms general private law. In addition to general private law, there are also special private rights, which contain special regulations for certain subject areas or professional groups, such as the standards of commercial law applicable to merchants or the collective law rules of labor law . Nevertheless, the BGB does not offer a complete codification of civil law in addition to the "Annex" mentioned .
After many years of consultation in two legal commissions and public debates, the BGB came into force at the time of the German Empire on January 1, 1900 through the Introductory Act to the Civil Code (EGBGB). It was the first codification under private law that was valid for the entire territory of the Reich. After the Second World War , the BGB continues to apply as federal law in the Federal Republic of Germany under Paragraph 1 and Basic Law .
Since then, the legislature has made many changes to the BGB. In the case of reforms, he is often faced with the decision of whether to pass the reform law as an amendment or supplement to the BGB or as a special law outside the BGB. The practice on this is inconsistent. To this day, the legislature has not come up with a clear line. Overall, the entire codification of civil law has grown steadily, but losses of substance are kept within manageable limits. However, there are losses to the extent that regulatory matters in the area of the law of obligations have been superimposed by layers of judicial law. On January 2, 2002, as part of the comprehensive reform of the law of obligations, a new publication of the BGB took place. The text was also adapted to the new German spelling . In addition, each paragraph, with the exception of Section 1588, was given an official heading.
The civil law is part of private law, the relations between legally equivalent legal users ( citizens , companies regulated). In contrast to this, public law regulates the relationships between private individuals and sovereigns ( subordination relationship ) or between sovereigns. The division into "private law" and "public law" dates back to Roman times. The term "citizen", which gives the BGB its name, must in no way be understood as a reference to a professional division of society into nobility , citizens, peasants and workers ; “Civil” is to be understood as legal relationships between citizens rather than between the state and citizens, as in the criminal code, for example . As the term “civil law”, which is used as a synonym for civil or private law, suggests, the term “citizen” in this context is derived from the Latin civis (compare also: ius civile ) and is to be understood as a citizen of the state .
Modern developments, which in the BGB provide for cross-contractual special regulations for consumers on the one hand and entrepreneurs on the other, contradict this concept of a civil-legal codification. Today, civil law can therefore be understood as the law that provides general regulations for everyday legal transactions.
The BGB is divided into five books:
- Book 1: General part ( BGB) - it contains the essential basic rules for the second to fifth books as a generally applicable part (see brackets )
- Book 2: Law of Obligations ( BGB) - the Roman law-based law of obligations contains regulations for binding contracts such as purchase , rental or service contracts as well as the law of legal obligations such as the law of enrichment and tort
- Book 3: Property law ( of the Civil Code) - is characterized Roman law and property law, which primarily regulations on ownership , possession and the ground as furniture liens contains; A large number of German law facts such as hunting, fishing, expropriation or inheritance law and leasehold law were not included
- Book 4: Family Law ( BGB) - the German law-based family law contains the essential regulations on marriage and the family
- Book 5: Inheritance Law ( BGB) - the inheritance law, which is shaped by German law, contains extensive regulations on wills , succession and heirs
The thematic division of the five books follows the systematic of the derivation of abstract basic rules from the originally casuistic legal and value model of Rome, developed by the pundit science of the 19th century . The division is subject to a remarkable asymmetry . While the first three books, the general part, the law of obligations and the law of property, are formally and legally differentiated from one another, the books on family and inheritance law contain related social processes. These are mixed with substantive and contractual components that should actually be found in the preceding three books. This systematically inconsistent structure results from the natural law ideas of the time of the Enlightenment . According to this, the world of the citizens was divided on the one hand into a private sphere , which is characterized by the family and the heir, and on the other hand into an economic sphere overlaid by public interests. By surrendering part of the sovereignty to the state, the state placed itself between the classic family interests. The entering into marriage, divorce and pension law are subject to mandatory public law provisions.
The BGB followed the historically grown tradition of a pandectistic breakdown of the subject matter into debt, property, family and inheritance law. On the other hand, it broke away from the principle of the formation of casuistic legal clauses . Even at the time the law came into force, the modern currents of jurisprudence completely turned away from pandectism. This pandectism was derived conceptually from the Pandects ( pandectae , "all-encompassing"; also: called Digest, from digesta , "orderly"), one of the four books of Justinian legislation, the so-called Corpus iuris civilis since the beginning of modern times . Since the Justinian legislation had largely compiled what had been developed in the Roman legal classic , its content can primarily be traced back to the Roman high-class jurist Gaius . From a systematic point of view, his influential work followed a model that was fundamentally divided into only two substantive areas, personal law and property law. The later jurisprudence spoke of the institutional system with this division of things . The codifications of the General Civil Code (ABGB) in Austria and the Civil Code in France are bound by this structure. In this respect, the BGB is a Romance codification.
Before the Civil Code came into force and contributed to the unification of the law, it was in a very fragmented form in the area of the German Reich founded in 1871 . Admittedly, many norms applied to the entire German area before, in addition to Germanic customary law (see also Germanic tribal law ), Roman law in the original form of the Justinian imperial law . This was a little late in the 15th century in German-speaking rezipiert . The common law was subsidiary application. Separate codifications existed in some countries. The Prussian General Land Law (ALR) of 1794 applied in Prussia, the Civil Code of 1804 in the areas on the left bank of the Rhine , the Baden Land Law of 1810 in Baden , the Codex Maximilianeus Bavaricus Civilis of 1756 in Bavaria and the Jutian law of 1756 in Jutland 1241, partly the Sachsenspiegel or the common Saxony law or the Saxon Civil Code of 1865. In the other countries, particular law applied from the outset . This showed little agreement because different contents and reasons for validity were regulated. Viewed across the board, a legal status had been created that appeared to be very inconsistent.
The efforts to standardize the legal situation, some of which were pursued, were preceded by the so-called codification dispute of 1814. It was held between Anton Friedrich Justus Thibaut and Friedrich Carl von Savigny . While the liberal Thibaut called for a uniform codification of civil law in order to simplify "civil traffic" (= commercial traffic ) and to contribute to national unity, the conservative Savigny opposed a single codification negatively ( On the need for general civil law for Germany Polemic of the profession of our time for legislation and jurisprudence ), because the jurisprudence of his time did not seem ripe for such an achievement. At first, Savigny's view prevailed.
In the course of time, especially after the establishment of the German Empire in 1871, the demands for uniform private law increased. As early as 1867, an application was made to the Reichstag of the North German Confederation to assign competence to regulate civil law to the federal government, but this was rejected. Two years later, another motion with the same content was submitted, which was accepted but had no consequences. It was also necessary to expand the legislative competence of the Reich limited by Art. 4 No. 13 of the Constitution of the German Reich for only criminal, obligation, commercial and bill of exchange law as well as judicial procedural law, so that a uniform "civil law" could arise at all .
After the successful establishment of the empire, many faced the task of completing the internal unity of the newly founded nation-state. This also included the standardization of the legal system based on the model of neighboring France, which with the introduction of the Civil Code in 1804 had given itself a uniform civil code that was subsequently adopted by numerous other states, including some German territories.
In 1873 , at the request of the Reichstag deputies Johannes von Miquel and Eduard Lasker of the National Liberal Party , the Reichstag and Bundesrat passed an amendment to the Reich constitution which, because of its persistence and patience, gave the Reich legislative competence for all civil law (see lex Miquel-Lasker ). The change brought about the extension of the empire's legislative competence to include all civil law, after the rejection of the Catholic Center Party and other conservative party groups had been overcome. The traditional word “law of obligations” has been replaced by the term “all civil law”.
A preliminary commission made proposals to the Federal Council with regard to the drafting of a civil code, which were largely based on an expert opinion by the professor of commercial law, Levin Goldschmidt , and which were well founded. In addition to the above-mentioned reviewer, this commission included four other personalities:
- Levin Goldschmidt
- Franz Philipp Friedrich von Kübel
- Ludwig Ritter von Neumayr
- Hermann von Schelling
- Anton von Weber
1st commission and 1st draft
In addition to the unfavorable political and constitutional requirements that had to be overcome , there were very favorable: motivated and hard-working lawyers who knew how to work at a high level. German jurisprudence enjoyed a high reputation during the 19th century and there was sufficient specialist staff. The 1st commission, chaired by Heinrich Eduard von Pape, consisted of 9 judges and ministerial officials and two professors, including the pandectist Bernhard Windscheid , was convened by the Federal Council in 1874 and met for the first time on September 17, 1874. The aim was to examine the “total inventory” of private law applicable at the time for “expediency, inner truth and correct implementation” and to use the results to determine the “correct design and arrangement”. After extensive deliberations, in December 1887 she presented the first draft along with five volumes of “Motive”. It was based on the principles of common law, Savigny's teachings and relevant guidelines from Windscheid, which is why the draft was also called the “little Windscheid” based on his three-volume “Textbook of Pandect Law”. On the other hand, it was criticized as having little focus on social needs, out of date, un-German and difficult to understand. The most notable critics were Anton Menger and Otto von Gierke , who particularly criticized the unlimited freedom of contract. In the critical phase, no fewer than 600 major statements were made, some of which were in the format of entire books.
In particular, the commission consisted of:
- Gustav Theodor Friedrich Derscheid
- Albert Gebhard
- Reinhold Heinrich Sigismund Johow
- Franz Philipp Friedrich von Kübel
- Karl Dietrich Adolf Kurlbaum
- Gustav of Mandry
- Heinrich Eduard Pape
- Gottlieb Karl Georg Planck
- Paul Rudolf von Roth
- Konrad Wilhelm von Rüger
- Gottfried Ritter von Schmitt
- Anton von Weber
- Bernhard Windscheid
In addition, nine so-called unskilled workers were assigned to the commission - themselves renowned lawyers who assisted the commissioners and later reconstructed the “motives” for the BGB. Some of them should later belong to the 2nd BGB Commission. The following were active as unskilled workers:
- Alexander Georg Achilles
- Karl Heinrich Borner
- Theodor Carl Wilhelm Philipp Braun
- Karl Eugen Ferdinand von Ege
- Viktor Friedrich August of love
- Karl Martini
- Wilhelm Konrad Neubauer
- Hermann Carl Sigismund Struckmann
- Karl Georg Ludwig Lionel Vogel
2nd Commission, 2nd and 3rd draft
A second commission convened in 1890 under the leadership of its general advisor Gottlieb Planck consisted of a significantly expanded group of commission members and commissioners from the Reich leadership:
- Alexander Georg Achilles
- Karl Heinrich Borner
- Robert Bosse
- Johannes Ernst Conrad
- Ludwig von Cuny
- Bernhard Engelbert Joseph Danckelmann
- Emil Gerhard Dittmar
- Hermann Gustav Eichholz
- Friedrich Balduin Freiherr von Gagern
- Albert Gebhard
- Friedrich Goldschmidt
- Eduard Hanauer
- Otto Heinrich von Helldorff-Bedra
- Adolph Hoffmann
- Karl August Ritter von Jacubezky
- Oscar Rudolph Küntzel
- Ernst Leuschner
- Gustav of Mandry
- Otto Carl Gottlob Freiherr von Manteuffel-Crossen
- Otto Karl von Oehlschläger
- Gottlieb Karl Georg Planck
- Konrad Wilhelm von Rüger
- Emil Russell
- Peter Spahn
- Hermann Carl Sigismund Struckmann
- Richard Karl Wilke
- Isaac Wolffson
In 1895 she submitted the 2nd draft (along with seven volumes "Protocols"), in which non-lawyers were also involved this time. After the Federal Council had made minor changes, it passed it on to the Reichstag in 1896, which took it up as a “third draft” in order to make minor changes. On August 18 of that year the law was passed and promulgated after 23 years. The legislative work abroad was closely followed and the result was almost unanimously welcomed and appreciated. The BGB immediately exerted considerable influence on foreign legislation.
In connection with the adoption by the Reichstag, the so-called "hare debate" has gone down in legal history. In the dramatic dispute over the question of whether the regulation (§ 835 BGB old version), according to which persons entitled to hunt are liable for damage caused by deer , deer and pheasants , should also be extended to hares , the German Center Party seemed to have almost let the entire BGB fail. The Catholic politicians of this party threatened to prevent the whole law rather than to give in on the rabbit question. They finally waived the rabbit section in the law because they were granted a tightening of marriage law.
The Social Democrats belonged throughout the legislative process the staunch critics of different designs, although their representative Arthur Hagen and Karl Frohme involved in the Commission's work and in parliament with amendments to the labor and marriage law. Both advocate equality for women in marriage law, as well as the formulation of collective labor law instead of the previously common legal fiction of a confrontation between workers and entrepreneurs as individuals and equal contracting parties. However, both goals could not be implemented, so that the SPD parliamentary group in the Reichstag ultimately rejected the draft.
Entry into force and introductory law to the civil code
After many years of deliberations in two expert commissions and intensive public debates, in which the German women's movement was also extensively involved, it was possible to establish equal rights for women as legal entities. The BGB adopted and drawn up in 1896 did not come into force until January 1, 1900 in accordance with Art. 1 EGBGB.
The BGB was accompanied by the Introductory Act to the Civil Code (EGBGB), which contains the transitional regulations for the law that was previously in force in Germany and opening clauses for the legislation of the federal states (today: federal states ) (so-called state private law). The federal states made use of this by enacting implementation laws for the BGB, some of which are still in force today.
Historical criticism of the BGB
Exemplary for the historical criticism of the BGB are Otto von Gierke's remarks based on the first draft (“little Windscheid”). In his opinion, the BGB was not supported by enough German legal ideas. In his publication The Draft of a Civil Code and German Law of 1889, he wrote:
“If this design is not viewed in this or that well-made detail, but as a whole, it is put through its paces and asked about the spirit that lives in it, it may reveal some praiseworthy qualities. Only he is not German, only he is not popular, only he is not creative - and the moral and social profession of a new private legal system does not seem to have entered his horizon at all! What it offers us is, in its final essence, a pandect compendium cast in paragraphs of the law. [...] The inner framework of the whole building from the foundation to the gable comes from the thought workshop of a Romance doctrine that is deeply untouched by the Germanic legal spirit. […] With each of its sentences, this code is addressed to the learned jurist, but it does not speak to the German people. [...] In bare abstraction, it dissolves what still lives among us from the traditional and evident rights. "
Another point of criticism from Gierkes was the alignment of personal rights with private benefit. Concerning the Romance doctrine of the first draft, he explains in a speech to the Vienna Legal Society of the same year:
“Our Germanic view that every right has an immanent limit is closely connected with the sentence 'no right without duty'. The Romance system in itself unlimited powers, which are only restricted from the outside by opposing powers, contradicts every social legal concept. In and of itself, no legal rule reaches us further than the reasonable interest protected in it demands and the living conditions allow it. "
It was also criticized that the BGB, with its formal equality of legal counterparts, does not do justice to the economic and intellectual diversity of the individual. The private autonomy as a mere possibility of economic and legal self-realization favors the longer term, the fast, flexible, knowledgeable and capable forces holding society. In contrast, the conditions of the wage working class in the general provisions on the service contract ( BGB) were only completely inadequately regulated, as these were tailored to services of pre-industrial character.
World of ideas of the BGB
The basics of the BGB are in the tradition of traditional Roman law , in this respect the BGB is a Romanist codification. A reference to the structuring system was already given above. Roman law , which is highly regarded in legal history, began with the Twelve Tables Law , which was introduced around 450 BC. Was created. It regulates many categorical private law matters, relating to the law of obligations and property, family and inheritance law, and ultimately tort and sacral law ( ius civile ). This first high point of the codification of law in the XII Tables was followed by a history of about a thousand years, which during the republic and increasingly during the imperial era produced a multitude of modifications and further developments in civil and civil procedural matters, primarily based on jurisprudence. Included in the time was the development of controversial doctrines ( ius controversum ), the heyday of sustainable classical jurisprudence . After the onset of state crises and thus of decline tendencies also in the delicate classical law (so-called vulgar law ), Emperor Justinian reflected on measures to save the traditional legal status in the late imperial period, thus in late antiquity . He decided to keep all the regulations created with and since the Twelve Tables Act, provided that they could be adapted to the higher economic and political demands and were therefore roadworthy. So codified republican law, juristic law and imperial constitutions flowed into a multi-part collection of laws, the later so-called Corpus iuris civilis . The institutions and the digests were the main guarantors of the substantive right of existence . The Codex Iustinianus (part of the corpus ) expresses: “By following the twelve tables, we correct the new law with the new law”. This remained in force until the end of the Roman Empire and was received intensively in Europe from the 12th century.
As a result of the derivation of both the Civil Code and the other European codifications from Roman law, they all share the “liberal image of man”, which shapes the basic values and legal figures. The current constitutional situation gives this image of man the space to develop, but does not justify it. It can be traced back to the classical epoch of ancient Greece, and it is often referred to as the ancient Enlightenment . Okko Behrends emphasizes that the statement is of considerable importance for the understanding of private law theory, but that it still requires a certain degree of clarification in its context. The liberal image of man can be found at the center of private law, "authenticated" by its long history of civilization; it was not only the state's national monopoly of force in its capacity as legislature and jurisdiction (constitutional consensus of the Basic Law ) that would have guaranteed it.
In addition to secular law, church law also found its way into the BGB with the Corpus Iuris Canonici . With it, for example, the category of the right of representation - whose maxims were borrowed from liber Sextus - found its way into the codification of the BGB. This legal figure was still alien to Roman law.
The reception of Roman law, which began in the 12th century in Bologna, Italy, led to a new high point in the history of law in the 18th and 19th centuries, when the codifications of natural law were created. With them, the centuries-long traditional principles should underpin the corporative -hierarchisch dominated society be overcome. In Germany, common law was given a strong boost in the 19th century by the pandect-scientific formulation aids. Roman law, in the form it was taught by the jurisprudence of the 19th century, was thus expressly declared to be the scientific basis. The guiding principles of “freedom” and “legal equality” for all persons participating in private law transactions ( private autonomy ) were the mainstay of this . Self-determination and freedom of choice had become the “magic words” of a new social self-confidence. In order to achieve this, the BGB paid attention to a functional and, above all, binding legal transaction technique. The individual should be able to shape his legal relationships on the basis of equality with others in self-determination and self-responsibility. Important forms of private autonomy are the freedom of contract ( BGB old version , now (1) BGB new version ) and testamentary freedom ( to BGB). The property system is also essentially designed for private benefit ( BGB). Sociopolitically, the function of the BGB was to create a suitable legal framework for the economic ventures of the aspiring bourgeoisie .
In contrast to the free law of obligations, property and inheritance law, family law largely followed the traditional patriarchal tradition, which is mainly in the administration and usufruct of the wife's property by the husband (§ 1363 BGB old version), the right of decision of the Husband in marital affairs (§ 1354 BGB old version) and the exercise of parental custody by the father (§ 1627 BGB old version). On the other hand, the BGB continued the mandatory civil marriage introduced by the Civil Status Act of 1875 with its fundamental divorce .
Despite the predominant liberal and individual features of the BGB, a balance was found between the interests of the subordinate society, industrialization and the political order of the German Empire . This was done by way of reservation clauses for the national legislative competence in the field of private law (see EGBGB ).
Basic stylistic ideas, application, legal development and interpretation of the BGB
Pandecticism itself was shaped by so-called case law , the structure of norms casuistic. The BGB law fathers rejected the method of orientation on the legalization of life issues. Instead, they had a control technology in mind that guarantees the highest possible level of abstraction and general validity (generalization). For this purpose, an upstream book, the “General Part”, was placed in front. In accordance with his objective, he established common rules for the following books. Many of the categorical terms of this “general part” are not defined in the law. Examples are the contract , the contractual condition or the damage . When codifying, the legislature often kept out of questions of the legal construction of many terms. For example, he leaves open whether the fulfillment is a contract or a real act.
When compared to the General Prussian Land Law , a code that saw itself as the “Law of Enlightenment”, the BGB had to act like a law at first approximation that was marked by substantial loss. The legislature's self-restraint, which had an impact on the law, required that a differentiated legal dogmatics be created. Hans Hermann Seiler expressed it to the effect that the BGB was less a product of legal positivism , but rather it would not be applicable without dogmatics. This makes it difficult to use. There is consensus in science today that the introduction of general regulations neither hindered nor significantly facilitated the development of the BGB.
The BGB is characterized by its high level of abstraction. This also applies to the formation of terms. Many of the “categorical terms” found in the law - for example the declaration of intent or the legal transaction - do not correspond to the world of expression in everyday social life. In this respect, they do not find any direct equivalent there, nevertheless, like many derivative terms, they are certified to be very precise and precise in their linguistic expression. Time and again, the BGB is awarded that to this day no other German law represents a comparable linguistic conciseness. However, it is also objected that the high level of abstraction may be one of the reasons why more specific regulations are not implemented, although they are required. A simpler legal terminology could help. To this day, special nullity rules are missing in labor and company law that is in need of adjustment. It was and is also criticized that the high degree of generalization is at the expense of individual justice.
The strictness of the legal terminology does not prevent the BGB from operating with general clauses . High demands that need to be filled in are based on clauses which, in the guise of good morals , of good faith , equity or the care required in trade, offer flexible standards for changing living conditions.
The methodology of private law is subject to considerable change to this day. At the time the BGB came into force, the legal way of working was still characterized by the (pandectistic) term jurisprudence developed in the 19th century . The methodology was based on a conviction derived from the historical school of law that legal clauses would only be established if the people for whom the legal clause should apply also accept them. The best-known representative of this historical awareness of law was Friedrich Carl von Savigny . Building on this, Bernhard Windscheid and Georg Friedrich Puchta postulated that the existing body of norms should be used in order to organize it into a logically closed system of legal terms. The received and still valid Roman legal material had to be put into a consistent legal system.
With the help of additional major principles and definitions ( pandectistic approach ), it should be possible within the framework of the term jurisprudence that all life processes become legally comprehensible. They should be able to be subsumed under the relevant legal terms so that the conflicts of everyday life can be resolved - as free as possible from legal valuation. In the 1920s, however, the law of interests represented primarily by Philipp Heck and Rudolf von Jhering prevailed. She was more flexible and got involved in legal assessments. The problematic cases for the term jurisprudence, namely the legally not regulated and therefore hardly solvable conflicts of interest, could be resolved within the framework of the new movement. For this purpose, the existing legal regulations were logically expanded by creating the principle of analogous comparability, the so-called analogy . With the help of the comparative evaluation, the existing contents of the regulations were also able to capture unregulated conflicts of interest. A general understanding prevailed that the judge was to be granted the authority to further develop the law . The highest courts argued that it was a requirement of the diversity of the reality of life; Due to the unpredictability of legal matters subject to regulation in the future, the legislature inevitably leaves a lot open which would lead to loopholes in the law due to “unintended incompleteness” . They agreed with Savigny's ideas that the legislature could be expected to set the legal and political framework, which would then be designed by the legal experts. From the 1960s onwards, the interpretation method of valuation jurisprudence prevailed in civil law literature . It is assumed that legislators and users of the law alike always subject legal terms to an "evaluation". The judge has to close the legal system and, if necessary, the existing legal loopholes in the light of the values of the Basic Law .
The interpretation of legal norms of the BGB and the subsidiary laws follows the so-called objective theory , a concept of values that was leveled by the highest court case law of the Federal Constitutional Court (BVerfG) and the Federal Court of Justice (BGH). The "objective will" of the legislature expressed in the wording of the law is decisive. On the other hand, the subjective will of the historical legislature, which in case of doubt cannot be fathomed at all, is irrelevant. In line with the legal concept of German Civil Code, the BGH specifies that it is not the literal expression, but the meaning of the norm that must first be grasped and then appreciated. The decisive criteria for the methodical interpretation of legal norms should first be searched for the “literal sense”, then for the “context of meaning”, the “reasons for origin” and the “purpose of the norm”.
In the first 14 years of its existence, jurisprudence and jurisprudence began to develop the dogmatics of the BGB. The courts supplemented the written law with the legal institution of positive breach of contract , the right to the established and exercised commercial enterprise or the preventive injunction against impending legal violations.
In the Weimar Republic , the focus was more on the fact that the BGB lacked protective provisions for the benefit of economically weaker citizens in tenancy and labor law . In labor law, the trend towards special legislation began at this time, which today has led to a large number of labor laws and confusing case law.
In the area of the law of obligations, the case law of the Reichsgericht - against the background of inflation - developed the legal institution of the discontinuation of the business basis ("steam price case" of 1920).
time of the nationalsocialism
The National Socialist legislature initially changed family and inheritance law. Since the general clauses , in particular BGB (“ good faith ”), “gateways” for legal dogmatics in the sense of National Socialist ideology, extensive changes to the first three books of the BGB were dispensed with. The Nazi regime was working on a People's Code, which was supposed to replace the BGB, which was committed to the liberal idea of equality and freedom. The marriage law was the 1938 Marriage Act taken out of the BGB. It was denazified in 1946, republished by the Control Council and gradually ( divorce law 1976, remaining marriage law 1998) returned to the BGB ( ).
The Allies withdrew major changes to the Nazi regime in the BGB. From this point on, the development of the BGB is to be divided into a West and East German development.
Development in the GDR
The legislation of the German Democratic Republic (GDR) gradually invalidated the BGB because it was not compatible with socialist ideology. Successively, family law in an adapted to the changed conditions of life of the Family Code (1965), labor in a Labor Code (1961, 1978 replaced by the Labor Code ), the remaining parts in the Civil Code transferred (1976). At the same time, the BGB was repealed in 1976 by the EGZGB. The law was subordinate to a socialist economic order. The contract served as an instrument of the planned economy .
With the economic and monetary union on July 1, 1990 and the German reunification on October 3, 1990, this special path ended. With extensive transitional regulations ( EGBGB) for the area of the former GDR ( - EGBGB), the BGB became German law again.
Development in West Germany
On March 31, 1953, the family law of the BGB became ineffective insofar as it violated the equality of men and women ( Paragraph 1, Basic Law). The legislature largely took this into account with the Equal Opportunities Act of 1957, in that the property law was converted to the community of gains that is still in force today and the husband's right to make decisions on marital issues was abolished. The marriage law law of 1976 eliminated the legal model of housewife marriage.
In divorce law, however, the move away from the principle of fault to the principle of breakdown was very controversial . The law for the legal status of illegitimate children of 1969 eliminated the unequal treatment between legitimate and illegitimate children and thus implemented the requirement of (5) of the Basic Law.
In the following years, numerous consumer protection laws were passed outside of the BGB, such as B. the Doorstep Cancellation Act or the law regulating the law of general terms and conditions (“ AGB-Gesetz ”), so that the clarity suffered and the character of the BGB as an overall codification was affected. Most of these laws have now been repealed and incorporated into the BGB and EGBGB.
Development since 1990 in Germany as a whole
1992 by the Care Act the right of guardianship abolished on adults and by the support ( BGB) replaced. In 1998 there was a major reform of the law on parenthood (including new regulations for the final elimination of the distinction between legitimate and illegitimate children) and the relocation of marriage law to the BGB.
The last major revision took place in the course of the modernization of the law of obligations , which came into force at the beginning of 2002 and through which, among other things, various consumer protection directives of the European Community were implemented. On this occasion, many of the ancillary laws mentioned were incorporated into the BGB. In addition, the positive breach of contract or claim and other legal institutions (further) developed by science and practice were expressly regulated by law. The entire law on performance disruptions and the statute of limitations have been revised. On the occasion of this revision, which was the most far-reaching since the existence of the BGB, an official new publication of the wording of the law was made for the first time.
Civil law in other legal systems
In Switzerland it is the Civil Code (ZGB) of 1907, which historically was based on the experiences of the German Civil Code, but is considered more modern and clearer. As far as the time priority is concerned, it is often overlooked that the Civil Code itself followed the Swiss Code of Obligations of 1881, which is now formally part of the Civil Code.
- Ff stenographic reports of the proceedings of the Reichstag of the North German Confederation, Berlin 1867th digitized via reichstagsprotokolle.de
- Stenographic reports of the proceedings of the Reichstag, Berlin 1871 et seq. ( Digitized via reichstagsprotokolle.de )
- Civil code in the version of the announcement of August 24, 1896. In: Reichs-Gesetzblatt. 1896, No. 21, pp. 195–603 ( transcript via Wikisource )
- Introductory Act to the Civil Code in the version published on August 24, 1896. In: Reichs-Gesetzblatt. 1896, No. 21, pp. 604–650 ( transcript via Wikisource )
Text output of the 1st draft
- Draft of a civil code for the German Reich. First reading. Prepared by the commission appointed by the Federal Council. Published by J. Guttentag (D. Collin), Berlin / Leipzig 1888. Digitized via archive.org
Reason for the 1st draft (so-called motifs)
Motives for the draft of a civil code for the German Reich. 5 volumes, published by J. Guttentag (D. Collin), Berlin / Leipzig 1888.
- Mot. I = Volume I: General Part. Digitized via archive.org
- Mot. II = Volume II: Law of Obligations. Digitized via archive.org
- Mot. III = Volume III: Property Law. Digitized via archive.org
- Mot. IV = Volume IV: Family Law. Digitized via archive.org
- Mot. V = Volume V: Inheritance Law. Digitized via archive.org
Text edition of the 2nd draft
Draft of a civil code for the German Reich. Second reading. According to the resolutions of the editorial committee. At official instigation. 3 volumes, J. Guttentag Verlagbuchhandlung, Berlin 1894 to 1895.
- I. to III. Book: General Part. - law of obligations. - Property law. Berlin 1894. Digitized via archive.org
- IV. Book: Family Law. Berlin 1894.
- V. and VI. Book: Inheritance Law; Application of foreign laws. Berlin 1895.
Materials for the 2nd draft (so-called protocols)
Minutes of the Commission for the second reading of the draft Civil Code. On behalf of the Reich Justice Office, edited by Dr. Achilles, Dr. Gebhard, Dr. Spahn. J. Guttentag, Berlin 1897.
- Prot. I = Volume I: General Part and Law of Obligations. Section I, Section II Tit. I, Berlin 1897. Digitized via archive.org
- Prot. II = Volume II: Law of Obligations Section II Titles 2 to 20, Sections III and IV. Berlin 1898. Digitized via University and State Library Düsseldorf
- Prot. III = Volume III: Property Law. Berlin 1899. Digitized via the University and State Library of Düsseldorf
- Prot. IV = Volume IV: Family Law. Berlin 1897. Digitized via archive.org
- Prot. V = Volume V: Inheritance Law. Berlin 1899. Digitized via the University and State Library of Düsseldorf
- Prot. VI = Volume VI: Application of Foreign Laws. - Draft II of the Civil Code; Revision. - Draft introductory law. - Draft of a law, concerning changes to the Courts Constitution Act, etc. Berlin 1899. Digitized via University and State Library Düsseldorf
- Prot. VII = Volume VII: Register. (made by H. Jakow, Großh. meckl. Schwer. Oberamtsrichter), Berlin 1899. Digitized via archive.org
Text edition of the 3rd draft
- Draft of a civil code and an associated introductory law as well as a law concerning amendments to the Courts Constitution Act, the Civil Procedure Code, the Bankruptcy Code and the Introductory Acts to the Civil Procedure Code and the Bankruptcy Code. In the version of the Federal Council drafts. At official instigation. J. Guttentag, Berlin 1898. Digitized via archive.org
Benno Mugdan's material edition
- The entire material for the civil code for the German Reich. Edited and edited by B. Mugdan , Kammergerichtsrath, 6 volumes, R. v. Decker's Verlag, Berlin 1899.
Source edition by Jakobs and Schubert
- Horst Heinrich Jakobs , Werner Schubert (Hrsg.): The consultation of the civil code in a systematic compilation of the unpublished sources. 11 volumes. De Gruyter, Berlin / New York 1978 to 2002.
Discussions and literature at the time of the creation of the BGB
- Georg Maas: Bibliography of civil law. Directory of individual writings and essays on the law united in the civil code for the German Reich . Volume I: 1888-1898. Berlin 1899; Volume II: 1899. Berlin 1900.
- Okko Behrends , Wolfgang Sellert (ed.): The idea of codification and the model of the civil code (BGB). 9th Symposium of the Commission “The Function of the Law Past and Present”. In: Treatises of the Academy of Sciences in Göttingen. (Philological-historical class. Third series No. 236). Vandenhoeck & Ruprecht 2000. ISBN 3-525-82508-8 .
- Marcus Dittmann: The civil code from the point of view of common law. The BGB and other codifications of the imperial era in the judgment of contemporary English and Anglo-American jurists . Duncker & Humblot, Berlin 2001.
- Holger Czitrich-Stahl: "Equal law for all!" German social democracy and the emergence of the civil code of 1896. In: Work - Movement - History . Issue II / 2016.
- Ulrich Eisenhardt : German legal history. 3. Edition. Beck, Munich 1999, ISBN 3-406-45308-2 , especially pp. 404-411.
- Sérgio Fernandes Fortunato: From Roman Common Law to the Civil Code. In: ZJS. 4, 2009, pp. 327–338 (PDF; 175 kB) .
- Rolf Knieper : Law and history: a contribution to the existence and change of the civil code. 1996, ISBN 3-7890-4351-6 .
- Mathias Schmoeckel , Joachim Rückert , Reinhard Zimmermann (eds.): Historical-critical commentary on the BGB. Volume I. General part §§ 1–240, 2003, ISBN 3-16-147909-2 .
- Hans Schlosser : Fundamentals of the modern history of private law. (= UTB. 882). 10th edition. 2005, ISBN 3-8252-0882-6 , especially pp. 180-206.
- Uwe Wesel : Almost everything that is law: Law for non-lawyers. ISBN 3-492-23960-9 .
- Franz Wieacker : History of private law in modern times with special consideration of the German development. 2nd, revised edition. 1967, ISBN 3-525-18108-6 .
- Heinz Georg Bamberger , Herbert Roth (Ed.): Commentary on the Civil Code in 3 volumes. 2nd Edition. 2007-2008, ISBN 978-3-406-53753-0 .
- Walter Erman (Greetings): Hand commentary on the civil code. 12th edition. 2008, ISBN 978-3-504-47100-2 .
- Maximilian Herberger , Michael Martinek , Helmut Rüßmann , Stephan Weth (eds.): Juris PraxisKommentar BGB , 8th edition. 2017, EBook: ISBN 978-3-86330-153-8 , juris PraxisKommentar BGB incl. Online use 7th edition 2014 ISBN 978-3-86330-086-9
- Othmar Jauernig (ed.): Civil law book. 14th edition. 2011, ISBN 978-3-406-62634-0 .
- Franz Jürgen Säcker , Roland Rixecker (Ed.): Munich Commentary on the Civil Code. 7th edition. Beck, Munich 2015–2017, ISBN 978-3-406-66540-0 .
- Otto Palandt (abbreviation): Civil Code. Commentary with subsidiary laws. 79th edition. Munich 2020, ISBN 978-3-406-73800-5 .
- Hanns Prütting , Gerhard Wegen, Gerd Weinreich (eds.): BGB. Comment. 6th edition. 2011, ISBN 978-3-472-07912-5 .
- Hans Theodor Soergel (abbreviation): Civil code with introductory law and subsidiary laws . 13th edition. 1999 ff., ISBN 978-3-17-015802-3 .
- Julius von Staudinger (greeting): Commentary on the civil code with introductory law and subsidiary laws . 13th edition. 1993 ff., ISBN 3-8059-0784-2 .
- Florian Faust : Bürgerliches Gesetzbuch general part, 7th edition 2020, ISBN 978-3-8487-6956-8 .
- Dieter Leipold : BGB I - Introduction and general part. 8th edition. 2015, ISBN 978-3-16-153923-7 .
- Hans-Joachim Musielak , Wolfgang Hau : Basic course BGB. 13th edition. 2013, ISBN 978-3-406-65206-6 .
- André Niedostadek : BGB for dummies. 3. Edition. 2015, ISBN 978-3-527-71203-8 .
- Rolf Schmidt: BGB general part. 16th edition. 2017, ISBN 978-3-86651-189-7 .
- Hans Brox , Wolf-Dietrich Walker: General part of the BGB. 39th edition. 2015, ISBN 978-3-8006-4965-5 .
- Michael Martinek et al: cornerstones of civil law. 5th edition. 2014, ISBN 978-3-8059-1164-1 .
- Helmut Köhler , Heinrich Lange : BGB, general part. 39th edition. 2015, ISBN 978-3-406-67876-9 .
- Haimo Schack : BGB - general part. 14th edition. 2013, ISBN 978-3-8114-9356-8 .
- Federal Ministry of Justice and Juris - the current version provided by the
- Civil Code of August 18, 1896. Historical-synoptic edition 1896–2009 - all versions since the entry into force with period of validity and synopses
- dejure.org: German Civil Code (as of December 31, 2001) - the version in force before the reform of the law of obligations
- archive.org: 1. Draft of a civil code from 1888
- archive.org: Motives for the draft
- Dieter Strauch: The Rhenish contribution to the creation of the BGB , Forum historiae iuris, March 15, 2005
- Dieter Schwab, Martin Löhnig: Introduction to civil law . CF Müller, Regensburg 2010, p. 12, Rn. 25.
- RGBl. 1896, p. 195.
- Otto Palandt : Civil Code . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , introduction, Rn. 6 f.
- Federal Law Gazette I p. 42 , ber.p. 2909 , ber. 2003 I p. 738
- Otto Palandt: Civil Code . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , introduction, marginal number 1.
- Alexandra Heinen: History, structure and basic principles of the BGB , Saarland University , accessed on March 28, 2016.
- Representing many, Okko Behrends : The idea of codification and the model of the Civil Code (BGB). 9th Symposium of the Commission “The Function of the Law Past and Present”. Ed .: Okko Behrends and Wolfgang Sellert , Vandenhoeck & Ruprecht, Göttingen 2000 (treatises of the Academy of Sciences in Göttingen). P. 9.
- Hans Hermann Seiler : History and the present in civil law , Heymanns, Cologne 2005, ISBN 978-3-452-25387-3 , pp. 315–328 (316 f.).
- Jahnel, Rosemarie: Short biographies of the authors of the Civil Code . In: Schubert, Werner (ed.): The advice of the civil law book . tape 1 . de Gruyter, 1978, ISBN 978-3-11-089670-1 , p. 69-110 .
- Thomas Darnstädt : Birth of the BGB - From bee colonies and circumcisions. In: www.spiegel.de . SPIEGEL ONLINE GmbH & Co. KG, June 21, 2013, accessed on November 3, 2018 .
- Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . Marginal 285.
- Thomas Finkenauer: The importance of Roman law
- Anton Menger: The civil law and the dispossessed people classes: A criticism of the draft of a civil law book for the German Empire , H. Laupp, Tübingen, 1890.
- Franz Wieacker : History of Private Law in the Modern Age with Special Consideration of German Development , 2nd Edition, Göttingen 1967, p. 484 ff.
- Thomas Darnstädt : Birth of the BGB. , Der Spiegel online from June 21, 2013.
- Holger Czitrich-Stahl: "Equal rights for all!" The German social democracy and the emergence of the civil code 1896. In: Work - Movement - History . Issue II / 2016.
- Helene Lange, Gertrud Bäumer: Handbook of the women's movement , Moeser, Berlin 1901, p. 142 f.
- Art. 1 EGBGB
- Okko Behrends, Wolfgang Sellert (Ed.): The idea of codification and the model of the Civil Code (BGB). 9th Symposium of the Commission “The Function of the Law Past and Present”. In: Treatises of the Academy of Sciences in Göttingen. P. 12 f.
- Liber Sextus 5:12, ruled 68/72.
- Hans-Jürgen Becker : Traces of Canonical Law in the Civil Code , in: Reinhard Zimmermann ed., Rolf Knütel / Jens Peter Meincke: Rechtsgeschichte und Privatrechtsdogmatik , pp. 159–169 (165).
- Okko Behrends, Wolfgang Sellert (Ed.): The idea of codification and the model of the Civil Code (BGB). 9th Symposium of the Commission “The Function of the Law Past and Present”. In: Treatises of the Academy of Sciences in Göttingen. (Philological-historical class. Third series No. 236). Vandenhoeck & Ruprecht 2000. p. 9.
- Hans-Peter Benöhr : The basis of the BGB, the expert opinion of the preliminary commission from 1874. In: JuS 17 (1977), pp. 79-82.
- Fundamentally, Horst Hammen : The meaning of Friedrich Carl v. Savignys for the general dogmatic foundations of the German Civil Code. Berlin 1983 (with details of Rolf Knütel : Roman Law and German Civil Law. In: Walter Ludwig (Hrsg.): Die Antike in der Europäische Gegenwart. (1993). Pp. 43–70.)
- Hans Hermann Seiler: History and the present in civil law , Heymanns, Cologne 2005, ISBN 978-3-452-25387-3 , pp. 307-312 (311).
- Franz Jürgen Säcker in: Munich Commentary on the BGB margin no. 23 ff.
- BVerfGE 34, 287 ; BGHZ 4, 158.
- BGHZ 65, 302.
- Okko Behrends : The Alliance between Legislation and Dogmatics and the Question of Dogmatic Ranks , in: Legislation and Dogmatics , ed. by Okko Berends and Wolfram Henckel , 1989, p. 18 ff .; 21 ff .; 26 ff.
- BVerfGE 1, 312 ; BVerfGE 62, 45 ; BGHZ 46, 76; 49, 223.
- BGHZ 2, 184; 13, 30.
- RG, judgment of September 21, 1920, Az. Rep. III 143/20, full text = RGZ 100, 129 ff. - "Steam price case"
- András Bertalan Schwarz: The German Civil Code and National Socialism. In: Journal on European History of Law . Vol. 2012, No. 1, pp. 52-57.
- Federal Law Gazette 2002 I p. 42 .