The New German Law of Obligations Historical

An authoritative account of the German law of obligations after the reform legislation of 2002 and a critical assessment of the new law in historical and comparative perspective. The analysis covers the new regime concerning liability for general non-perf

Reinhard Zimmermann, Director of the Max Planck Institute for Foreign Private and Private International Law, Hamburg; Professor of Private Law, Roman Law and Comparative Legal History, University of Regensburg

Abbreviations

xiii

Introduction

1

(4)

The German Civil Code and the Development of Private Law in Germany

5

(34)

The Codification Movement in Europe

5

(1)

The German Civil Code as a Late Fruit of the Codification Movement

6

(2)

The Programme of `Historical Legal Science'

8

(2)

`Historical Legal Science' and Codification

10

(1)

Legal Unity by Way of Legislation

11

(3)

The BGB as a `Prison Cell'?

14

(3)

The Reaction of the Courts

17

(3)

Unity of the System of Private Law?

20

(2)

The Resilience of the BGB

22

(2)

The Development of Private Law under the Code

24

(3)

Criticism of the BGB

27

(3)

The Modernization of the Law of Obligations

30

(5)

The Europeanization of Private Law

35

(4)

Remedies for Non-performance, Viewed against the Background of the Principles of European Contract Law

39

(40)

The Path to the New Rules

39

(4)

The old law, Abschlußbericht and `Discussion Draft'

39

(2)

From the `Discussion Draft' to the new law

41

(2)

Specific Performance and Exclusion of the Right to Specific Performance

43

(6)

Impossibility of performance

43

(2)

`Practical Impossibility' and `Economic Impossibility'

45

(2)

The problem of `subjective impossibility'

47

(1)

`Moral impossibility'

48

(1)

Damages

49

(11)

Conceptual foundations

49

(3)

Damages in lieu of performance

52

(1)

Impossibility of performance

52

(1)

Delay of performance and deficient performance

53

(1)

Infringement of ancillary duties which do not affect the performance as such

54

(2)

Damages for delay of performance

56

(1)

Mora debitoris

56

(1)

Excursus: other consequences of mora debitoris

57

(1)

`Simple' damages

58

(2)

Claim for the Substitute in Cases of Impossibility

60

(1)

Expenses Incurred in the Expectation of Receiving Performance

61

(1)

Initial Impediments to Performance

62

(4)

Validity of the contract

62

(2)

Essential elements of the liability regime

64

(1)

Initial impossibility and the rules on mistake

65

(1)

Termination

66

(9)

Doctrinal and historical background to the new law

66

(2)

Automatic release of the creditor in cases of impossibility of performance on the part of the debtor

68

(2)

Requirements for, and mechanics of, termination

70

(2)

Comparison

72

(3)

Other Remedies

75

(1)

Concluding Observations

76

(3)

The Development of Liability for Non-conformity in German Sales Law

79

(43)

Introduction

79

(3)

The old approach

79

(1)

The Consumer Sales Directive

80

(2)

Liability for Latent Defects: The Old BGB and its Historical Background

82

(7)

Roman law

82

(1)

Ius commune

83

(1)

The sale of unascertained goods

84

(1)

Roman law

84

(1)

Tensions

85

(2)

Controversy and compromise

87

(2)

Problem Areas

89

(7)

Supplementary performance

90

(2)

Damages

92

(1)

Extinctive prescription

93

(2)

Other precarious borderlines

95

(1)

Reform

96

(3)

Characteristic features

96

(2)

The basic structure

98

(1)

Supplementary Performance

99

(7)

Repair or replacement

99

(2)

Details

101

(1)

Open questions

102

(2)

Second chance

104

(2)

Secondary Rights

106

(1)

Termination

107

(1)

Damages

108

(5)

Damages in lieu of performance

109

(1)

The concept explained

109

(1)

When can they be claimed?

110

(1)

Simple damages

111

(1)

Damages for delay of performance

112

(1)

Appendix: claim for the substitute in cases of impossibility

113

(1)

Reduction of the Purchase Price

113

(3)

Unsolved Problems

116

(1)

Conclusion

117

(5)

The New German Law of Prescription and Chapter 14 of the Principles of European Contract Law

122

(37)

Introduction

122

(2)

The Development of the Law of Prescription

124

(5)

The reform process in Germany

124

(2)

The Uncitral Convention, the Principles of European Contract Law and the Unidroit Principles

126

(2)

A common framework

128

(1)

Subjective or Objective System

129

(2)

The Thirty-year Prescription Period

131

(2)

Liability for Non-conformity

133

(5)

The law of sale

133

(3)

Contracts for work

136

(2)

Commencement of Prescription

138

(5)

Implementing the subjective system

138

(2)

Reasonable discoverability; obligations to refrain from doing something

140

(1)

Due date

141

(1)

Other peculiarities of the German regulation

142

(1)

Renewal of the Period of Prescription

143

(1)

Suspension and Postponement of Expiry

144

(9)

Judicial and other proceedings

144

(1)

Impediment beyond the creditor's control

145

(1)

Negotiations

146

(1)

Close personal ties and incapacity

147

(3)

Sexual abuse

150

(2)

Deceased's estate; right to refuse performance

152

(1)

Effects of Prescription

153

(1)

Modification by Agreement

154

(1)

Another Reform

155

(2)

Conclusion

157

(2)

Consumer Contract Law and General Contract Law

159

(70)

Introduction

159

(1)

Freedom, Equality, and Social Responsibility at the Time of the Original BGB

160

(11)

Protecting the weaker party

160

(2)

Economic background

162

(1)

The drops of social oil

163

(2)

The Act concerning Instalment Sales

165

(2)

Early `doorstep' legislation

167

(1)

Industrial workers, domestic servants, railway engines

168

(1)

Usury

169

(2)

The Rise of Modern Consumer Legislation

171

(16)

The first period: until the end of the 1970s

171

(1)

Origins

171

(1)

Instalment sales, distance teaching, package travel

172

(1)

Standard terms of business

173

(1)

A `Page of glory' in the history of private law adjudication

173

(2)

Consumer protection?

175

(2)

Which `model of society'?

177

(1)

The European Community takes over

178

(1)

A promising field of activity

178

(1)

The beginning: doorstep selling, product liability, consumer credit

179

(3)

Changing gear: developments up to the Consumer Sales Directive

182

(1)

Package travel and unfair terms in consumer contracts

182

(1)

Timeshare agreements and cross-border credit transfers

183

(1)

Distance contracts

184

(1)

Late payments, electronic signatures, e-commerce

185

(1)

Consumer sales

186

(1)

Incorporation: The Law as it Stands Today

187

(7)

Definitions, unsolicited performances, standard terms of business

187

(2)

Particular forms of marketing

189

(1)

Right of revocation (general rules)

189

(2)

Sale of consumer goods

191

(1)

Credit transactions

192

(2)

Package travel

194

(1)

General Comments

194

(11)

Consumer contract law and the EC

194

(2)

Being caught by surprise

196

(1)

A newly gained transparency?

197

(1)

The new provisions and the system of the BGB

198

(2)

`Throw-away' legislation

200

(3)

Excessive implementation

203

(2)

The Decision to Incorporate: An Evaluation

205

(24)

General background

205

(1)

Freedom of contract and self-determination

205

(2)

A combination of criteria

207

(1)

Close family members of the main debtor as sureties

207

(2)

Excessive interest rates

209

(1)

Consumer protection

210

(1)

The main devices for protecting consumers

210

(1)

Duties of information

211

(2)

Right of revocation

213

(1)

`Being caught off-guard'

213

(2)

Other policy considerations

215

(1)

Timeshare agreements

216

(1)

Instalment supply contracts, distance contracts, distance teaching contracts

217

(1)

Unilaterally mandatory rules of law

218

(1)

Specific protective rules

218

(1)

Policing types of contract

219

(3)

The concept of `consumer'

222

(2)

Possible objections

224

(2)

Building site or museum?

226

(3)

Index

229

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The New German Law of Obligations Historical and Comparative Perspectives

Summary

Author Biography

Table of Contents

Supplemental Materials

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The New German Law of Obligations Historical and Comparative Perspectives

Summary

Author Biography

Table of Contents

Supplemental Materials

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