Paul Oertmann

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Göttingen, Stadtfriedhof: grave of Paul Oertmann

Paul Ernst Wilhelm Oertmann (born July 3, 1865 in Bielefeld , † May 22, 1938 in Göttingen ) was a German civil lawyer . He was best known for his 1921 publication "The Business Basis - A New Legal Concept". With the business basis, Oertmann created a legal instrument to cope with the previously highly controversial objection to changed circumstances, which from then on could establish itself more and more firmly in jurisprudence and teaching. Since the Law of Obligations Modernization Act 2002, the doctrine of the business basis in § 313 BGB has also been expressly regulated under positive law and forms a defensively applicable exception to the principle of Pacta sunt servanda (contract compliance requirement ).

Life

Oertmann was born as the son of the factory owner August Oertmann and his mother Emma Graf. On October 25, 1902, he married Lotte Windscheid, the daughter of the privy councilor Bernhard Windscheid . Windscheid's doctrine of the prerequisite was an essential predecessor of the doctrine of the business foundation established by Oertmann.

After graduating from high school in Bielefeld in 1884, Oertmann studied at the universities of Berlin and Freiburg. In 1887 he completed his legal traineeship in Berlin. In the same year he received his doctorate in law (Dr. iur.); In 1891 he also obtained his doctorate in philosophy (Dr. phil.) In Leipzig. In 1892 he obtained his habilitation in law (also in Berlin). In 1896 Oertmann became an associate professor in Berlin.

In 1901 he finally received a call from the University of Erlangen. There he taught and researched as a full professor until 1917 in the areas of German civil law , Roman civil law and civil procedural law . In 1908/1909 Oertmann was Vice Rector in Erlangen. From 1918 to 1934 Oertmann held a chair for civil law and procedural law in Göttingen. In 1938 he died in Göttingen.

Act

In the period after the First World War, which was shaken by the collapse of the currency, Oertmann succeeded in introducing the legal instrument of "discontinuation of the business basis ". After he had tried in 1914 in his work “ Rechtsordnung und Verkehrssitte ” to take into account changed circumstances (such as an inflation that was completely unexpected by the parties) when interpreting the contract, he recognized in his work “The business basis. A new legal term “from 1921, that in German law a completely new institute is necessary to bring about an appropriate balance of interests among the parties. The Reichsgericht adopted the doctrine of the business basis as early as the year after the business basis was introduced on February 3, 1922 in its decision “Vigognespinnerei” to take into account currency devaluation in a contract for the purchase of a spinning mill.

The creation of law became known in legal literature and case law as Oertmann's formula . To this day, the formula has repeatedly met with rejection insofar as it is argued that a performance creditor in a free market economy has to bear miscalculation risks himself. If, when the business basis was formed between the parties, it would not become clear that later changes to the objective conditions were hypothetically included in the will now, the judge could not be forced in retrospect to rely on such a hypothetical will of the parties. In addition to good faith , the objective factual situation is ultimately decisive. These considerations lead to a rare application of the formula to this day.

Fonts

  • The business foundation. A new legal term . Keip Reprint, Goldbach 1995 (reprint of the Leipzig 1921 edition).
  • Outline of German civil procedure law . Keip Reprint, Goldbach 1995 (reprint of the Leipzig 1930 edition).
  • Legal system and custom, especially according to civil law. At the same time a contribution to the lessons of the interpretation of legal transactions and of the revision . Scientia-Verlag, Aalen 1971 (reprint of the Leipzig edition, 1914).
  • The comparison in common civil law . Scientia-Verlag, Aalen 1969 (reprint of the Berlin edition 1895).

literature

Individual evidence

  1. ↑ Herrmann AL Degener (Ed.): Who is it? Resolution of approx. 5000 pseudonyms . 10th edition Degener Verlag, Berlin 1935.
  2. ^ Braun, Johann: Loss of the business basis. BGH, WM 1978, 322 . In: JuS  1979, 692 (694), ISSN  0022-6939 .
  3. ^ Paul Oertmann, Rechtsordnung und Verkehrssitte , 1914, p. 201.
  4. ↑ RGZ  103, 328 (332). For the derivation, compare the “steam price case” , RGZ 100, 129.
  5. ↑ Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . Pp. 468-470 (469).

Web links

personal data
SURNAME Oertmann, Paul
ALTERNATIVE NAMES Oertmann, Paul Ernst Wilhelm (full name)
BRIEF DESCRIPTION German civil lawyer
DATE OF BIRTH July 3, 1865
PLACE OF BIRTH Bielefeld
DATE OF DEATH May 22, 1938
Place of death Goettingen