Bernhard Windscheid

from Wikipedia, the free encyclopedia
Bernhard Windscheid

Bernhard Joseph Hubert Windscheid (born June 26, 1817 in Düsseldorf ; † October 26, 1892 in Leipzig ) was a German lawyer who had a great influence on German civil law studies .



Textbook of Pandect Law , title page of the 3rd volume of the 6th edition from 1887

Bernhard Windscheid was born as the third child of the royal mortgage keeper and tax adviser Ferdinand Windscheid and his wife Frederike, geb. Servaes born. After attending the boys' school in Emmerich and Recklinghausen , he passed the Abitur in Düsseldorf in 1834 .


He began to study linguistics in Berlin , but quickly decided, under the influence of the lectures of Savigny , to study law , which he completed from 1834 to 1836 in Berlin , Bonn and again in Berlin. He passed his first legal exam in 1837, followed by practical legal service at the Düsseldorf Regional Court.

academic career

On December 22, 1838, he received his doctorate in Bonn with a dissertation on the subject of De valida mulierum intercessione . Also in Bonn , he completed his habilitation in 1840 with the text On the teaching of the Code Napoleon on the invalidity of legal transactions . There he was appointed associate professor for Roman and Franco-Rhenish law in 1847 . In 1847 he went to Basel as a professor , then to Greifswald in 1852 , Munich followed in 1858 , and in 1871 he was appointed to Heidelberg as the successor to Adolph von Vangerow , where he received the title of Privy Councilor .

On November 4, 1858, he married the painter Lotte Pochhammer, with whom he had four children. In 1868 he was awarded the title of nobility by the Bavarian king , but since he saw himself as a member of a middle-class family, he did not lead it. In autumn 1874, Windscheid moved from Heidelberg to the University of Leipzig , where in 1880 he was appointed full professor at the Faculty of Law. In Leipzig he worked scientifically until his death. There he also took part in the organizational tasks of the Leipzig University and was the rector of the Alma Mater in 1884/85 .


Bernhard Windscheid in the commission for the BGB (engraving by Hermann Scherenberg , 1875)
Former burial site of Bernhard Windscheid in the New Johannisfriedhof in Leipzig, source Leipzig City History Museum

At Baden's suggestion, Windscheid was elected in the summer of 1874 as a member of the First Commission for the drafting of a German Civil Code (BGB) , to which he belonged until September 30, 1883. Even though Windscheid was of the opinion that Roman law should be adopted as a whole for the German Empire , his main work, the three-volume textbook on Pandect Law , which appeared from 1862, had a decisive influence on the first draft of the BGB. In it he presented the Roman law of his time so clearly that this textbook largely replaced the missing civil code by 1900. In his strictly systematic portrayal of the Pandects, Windscheid met the needs of practice far, because, unlike the conservative supporters of the historical school of law, he completely renounced the historical treatment of the sources and only looked for the practical classification for the present, so his book had a status for legal work that was higher than that of Palandt today . It was reissued twice by Theodor Kipp after 1900 .

Windscheid's legal achievements also include the establishment of the substantive legal claim in its current form as a distinction to the Roman legal act as a determined complaint , the actio of Roman civil law from the standpoint of today's law , published in 1856.

With his work The Doctrine of Roman Law on Prerequisites , Windscheid attempted to introduce the concept of prerequisite into the legal system that existed at the time ("Prerequisites"). The prerequisite is a new form of will restriction . A party that only declares itself under the condition of the existence, the continuation or the occurrence of a circumstance is not bound by the declaration of intent “if the assumption or expectation does not prove itself”. The requirement is to be distinguished from the insignificant motive of a party and from the legally binding condition within the meaning of today's § 158 BGB. Windscheid was unable to assert himself with his demand to include the requirement in the Civil Code of 1896, which came into force in 1900. This was mainly due to the fact that the requirement was viewed as a threat to legal certainty . Numerous recognized legal scholars of the time feared that a large number of contracting parties could subsequently (wrongly) invoke an alleged requirement. The Imperial Court of Justice also rejected Windscheid's theory of presuppositions, as, in its opinion, it neither corresponded to the law of Roman antiquity nor to that of the Corpus Iuris and consequently lacked any “source-based justification”. If the doctrine of the prerequisite failed in terms of positive law, it nevertheless served - together with the clausula rebus sic stantibus and the laesio enormis - as an essential predecessor of the doctrine of the discontinuation of the business basis developed in 1921 by his son-in-law Paul Oertmann , today disruption of the business basis according to § 313 BGB.


In 1890 Windscheid became an honorary citizen of Leipzig , where a street was named after it in 1911. In Berlin-Charlottenburg, too, Windscheidstraße has been named after him since 1897, and a street in the Düsseldorf district of Düsseltal has been named after him since 1903.



  • Festschrift for the 50th anniversary of Bernhard Windscheid's doctorate on December 22, 1888. Published by the Rostock Faculty of Law. Reprint of the Rostock 1888 edition. Scientia, Aalen 1979, ISBN 3-511-00906-5 .
  • Ulrich Falk : A scholar like Windscheid. Investigations in the fields of so-called term jurisprudence (= studies on European legal history. Volume 38). Frankfurt am Main 1989, ISBN 3-465-01866-4 (dissertation).
  • Ulrich Falk: The true lawyer and the lawyer as such. In memory of Bernhard Winscheid. In: Legal History Journal (RJ). Volume 12, 1993, pp. 598-633.
  • Gabor Hamza: Origin and development of modern private legal systems and the Roman law tradition. Budapest 2009, ISBN 978-963-284-095-6 , pp. 193-200.
  • Gerd Kleinheyer, Jan Schröder: Bernhard Windscheid. In: German and European lawyers from nine centuries. Heidelberg 1996, ISBN 3-8252-0578-9 .
  • Bernd Klemann: Seven small contributions for a Windscheid biography. In: Heinz Mohnhaupt (ed.): Legal history in the two German states (1988–1990). Examples, parallels, positions (= studies on European legal history. Volume 53). Frankfurt am Main 1991, ISBN 3-465-02271-8 .
  • Friedrich Klein: Bernhard Windscheid June 26, 1817–26. 10. 1892. Life and work (= writings on legal history. Volume 168). Berlin 2014, ISBN 978-3-428-14118-0 .
  • Ernst LandsbergWindscheid, Bernhard . In: Allgemeine Deutsche Biographie (ADB). Volume 43, Duncker & Humblot, Leipzig 1898, pp. 423-425.
  • Gottlieb Planck : Windscheid as an employee on the civil code. In: Deutsche Juristen-Zeitung. Göttingen 1909, Sp. 951-954.
  • Joachim Rückert : Bernhard Windscheid and his jurisprudence “as such” in the liberal constitutional state (1817–1892). In: Legal training (JuS). 1992, pp. 902-908.
  • Joachim Rückert: Method and civil law with Bernhard Windscheid (1817-1892). In: Joachim Rückert, Ralf Seinecke (ed.): Methodology of civil law - from Savigny to Teubner. 3. Edition. Baden-Baden 2017, ISBN 978-3-8487-2931-9 , pp. 121-147.
  • Joachim Rückert: Windscheid - adored, rejected, forgotten, enigmatic? In: Legal journal . 2017, pp. 662–670.
  • Rainer Schröder : Legal History. 7th edition. Munster 2006.
  • Erik Wolf : Great legal thinkers in German intellectual history. 4th edition. Mohr, Siebeck 1963, ISBN 3-16-627812-5 , pp. 591-621.

Web links

Commons : Bernhard Windscheid  - Collection of images, videos and audio files
Wikisource: Bernhard Windscheid  - Sources and full texts

Individual evidence

  1. ^ Schubert, in: Horst Heinrich Jakobs, Werner Schubert: The deliberations of the Civil Code in a systematic compilation of the unpublished sources, materials on the history of the creation of the BGB. Berlin / New York 1978, p. 86.
  2. Erik Wolf : Great legal thinkers in German intellectual history. 4th edition. Tübingen 1963, p. 588.
  3. Bernhard Windscheid: The requirement. In: Archives for civilist practice . Volume 78, 1892, pp. 161 ff. (201 f.)
  4. Ulrich Falk: A scholar like Windscheid , 1989, p. 193 ff.
  5. Reinhard Zimmermann : Today's Law, Roman Law and Today's Roman Law . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 1-39 (35).
  6. Otto Lenel fought particularly bitterly with these words against the doctrine of the requirement: O. Lenel: The doctrine of the requirement (with regard to the draft of a civil code) . In: Archives for civilist practice. Volume 74, 1889, p. 213 (216). The failure of the requirement in the Civil Code is largely attributed to this article - wrongly, as later u. a. Wolfgang Fikentscher asserted: Finkentscher: The basis of business as a question of contractual risk. 1971, p. 5.
  7. RGZ 24, 169 ff. (170).
  8. ^ Johann Braun : Loss of the business basis - BGH , WM 1978, 322. In: Legal training . 1979, p. 692 (694).