Codex Maximilianeus Bavaricus Civilis

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The Codex Maximilianeus Bavaricus Civilis ( CMBC ; German  " Maximilians Bavarian Civil Code " ) from 1756 is a historical Bavarian law; it was also referred to as "(Chur) Bavarian land law". It expired on January 1, 1900 when the Civil Code came into force.

It is not to be confused with the multipart Codex Maximilianeus of 1616 (“Landrecht, Policey, Judicial, Malefitz and other ordinances of the Principality of Upper and Lower Bavaria”), which established legal unity in Upper and Lower Bavaria for the first time.

History of origin

The focus of Bavarian legislation was on land law and the state order. The latter contained in particular what is now included in the catalogs of criminal , police and public law ; Among them are Duke Ludwig's Landshut state order from 1474, the state order from 1516 and its revision from 1553.

The land rights mainly contained private law norms. The Upper Bavarian Land Law of 1346 and its 1518 reformed version did not contain a complete private law system as we see it today. The land law of 1616 regulated large parts of civil law ; nevertheless, there was a need for a self-contained system of private law until the 18th century. According to Helml, the Codex Maximilianeus Bavaricus Civilis from 1756 was the culmination and conclusion of this development.

Maximilian III Joseph , Elector of Bavaria , inherited from his father Karl Albrecht a secondary state that had been exhausted by the war and whose army and finances were in poor condition. Maximilian III initiated measures to improve the internal conditions of the state and to make it more efficient. In this regard, the codification can be understood as an instrument for controlling political power. The state reform also meant a legal reform, the immediate impetus of which (...) were the parts of the Corpus Iuris Fridericianum project published in 1749 and 1751 .

The Codex Iuris Bavarici Criminalis appeared under the government of Elector Maximilian III. in 1751. It was followed by a comment in 1752. In 1753 the Codex Iuris Bavarici Iudiciarii followed and in 1754 notes on it. In 1756 the most extensive part, the Codex Maximilianeus Bavaricus Civilis, came into force. It comprised four parts with over 800 paragraphs. In the course of the following years up to 1768 the five-volume annotations appeared. These three codes of law were a self-contained work. For several decades they formed the basis of the Bavarian legal system. Despite its ancient features, this legislation was a worthy prelude to the great codifications to come. In 1785 a bill of exchange was also published.

Wiguläus Xaverius Aloysius Freiherr von Kreittmayr

The laws, comments and remarks came entirely from the pen of Wiguläus von Kreittmayr , who had been Vice Chancellor of Bavaria since 1749. Kreittmayr's task was to put the now confusing law in Bavaria into usable forms. Kreittmayr's legal works have also achieved fame as entertaining legal reading, which was ascribed grainy, sometimes even crude humor.

The CMBC

Kreittmayr's CMBC, the oldest German private law code, adopted the older legislation (such as the land law of 1616). In contrast, received Roman law continued to apply in the event that loopholes in the law were closed and for interpretation. The previous highest court decisions were incorporated into the law and developed prejudicial effect insofar as they did not have the same legal force, but contradictions with them were to be avoided. In practice, however, the regulations have often been circumvented. Important features of the CMBC are its level of detail and the fact that the sources of common law were still granted subsidiary validity. The Codex contained little new law, as innovations in conservative Bavaria would have met with criticism and rejection. Necessary innovations could only be approached cautiously. Nonetheless, the law was innovative: for example, it was the first law to recognize the principle of “direct representation” and thus consolidated the idea of ​​protecting trust. The CMBC can be seen as the beginning of educational reforms with more predictability of the administration of justice and legal certainty. It was valid longer when there was an independent Bavarian state, namely until 1900, when all territorial civil rights were replaced by the BGB . The CMBC thus became the last Bavarian codification of private law .

Although the Codex was created in the time of the late natural law and is considered to be the first comprehensive codification of the natural law age, the notes rather than the CMBC itself were shaped by natural law influences; In the CMBC itself, natural law can only be felt "[in] the idea of ​​a comprehensive record of law, [in] the attempt to bring this into a system, and [in] the striving for a generally comprehensible formulation". Kreittmayr seemed the natural law to be too imprecise and too arbitrary in its premises to be able to supplant Roman law; instead, natural law should only apply as a measure of justice. Methodically, the Codex is close to the usus modernus , since it tried to combine local and common law . In some respects, the land law was linked to Hugo Grotius' terminology and, based on it, to Samuel von Pufendorf and Christian Wolff .

The commentary on the CMBC, which had become a standard work of civil law and was also used outside Bavaria, pursued three goals: to interpret the CMBC, to justify and substantiate its regulations, and to create a textbook. The judicature has given the commentary equal authority.

literature

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See also

Footnotes

  1. ↑ see also Wilhelm Volkert: Law books of Emperor Ludwig of Bavaria from 1334/36 and 1346 ( online )
  2. ↑ p. 6.
  3. ↑ Pöpperl, p. 1.
  4. ↑ Schlosser, p. 111.
  5. ↑ Pöpperl, p. 2; also Kobler, p. 337.
  6. ↑ Kobler, p. 337.
  7. ↑ Kleinheyer and Schröder, p. 154.
  8. ^ Wieacker, p. 327.
  9. ↑ Eberle, pp. 15-17.
  10. ↑ Glöckle, p. 127; see also Kleinheyer and Schröder, p. 155, and Eberle, p. 20.
  11. ↑ Kobler, p. 338.
  12. ↑ Wesenberg and Wesener, p. 158.
  13. ↑ § 14 No. 3 CMBC.
  14. ↑ Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . P. 78.
  15. ^ Paul von Roth : Bayrisches Civilrecht , Tübingen 1871, p. 115 f.
  16. ↑ Helml, pp. 32-34.
  17. ↑ Pöpperl, pp. 8, 10.
  18. ↑ a b Götz Landwehr: The protection of trust of the third party in the case of the chosen representative . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, p. 221 f.
  19. ↑ Cod. Max. Bav. Civ. IV 9: § 7 No. 1.
  20. ↑ Eisenhardt, p. 209.
  21. ↑ Helml, p. 33.
  22. ↑ Helml, pp. 32-34; Kobler, p. 339; Eisenhardt, p. 209.
  23. ↑ Kobler, p. 337.
  24. ↑ Kleinheyer and Schröder, p. 155.
  25. ↑ Helml, p. 33.
  26. ↑ Kleinheyer and Schröder, p. 155.
  27. ↑ Glöckle, p. 125.
  28. ↑ Schlosser, p. 115.
  29. ↑ UTB, 6th edition 2017, ISBN 978-3825245269 .