Civil law book
the civil law book (BGB) regulates the most important legal relations between private people as central Kodifikation of German general private law. It forms with its Nebengesetzen (e.g. Residential property law, insurance contract law, life partnership law) general private law.
The legislator made since then a great many changes at the BGB. It applies in the Federal Republic of Germany as Federal Law according to kind I, kind GGaway. To 2. January 2002 took place a new proclamation.
The term of the civil right comes that the Roman right. It designates the right of legal private people on an equal footing among themselves, in contrast to the right between private ones and sovereignty carriers or the right between sovereignty carriers(so-called. public right). The title “civil law book” alludes thus straight not to a condition-legal arrangement society in aristocracy, citizen, farmer and worker, but to a separation of the economic and family sphere on the one hand and the national sphere on the other hand.
|Title:||Civil law book|
|area of application:||Federal Republic of Germany|
|right subject:||Private law|
|date of the law:||18. August 1896 (RGBl. S. 195)|
|The entry into force to:||1. January 1900|
|new proclamation of:|| 2. January 2002 (BGBl. I S. 42, more ber.|
S. 2909 and. BGBl. 2003 S. 738)
|Last change through:|| Kind. 123 law of 19. April 2006|
(BGBl. I S. 866, 882)
| the entry into force|
of the last change: 1)
| 25. April 2006|
(kind. 210 law of 19. April 2006)
|1) please considerIt the reference to the valid law version!|
Table of contents
the BGB is divided into five books:
- General part - it contains substantial basic rules for second to fifth book(see.Clamping technique);
- Law of contract - the Roman-legally coined/shaped law of contract contains regulations for obligating contracts, like sales contracts, leases or contracts of employment;
- Thing right - the German-legally coined/shaped thing right contains in particular regulations for property and possession;
- Family right - which contains German-legally coined/shaped family rightin the meantime the substantial regulations over marriage and family;
- Vomit - the German-legally coined/shaped vomit contains extensive regulations to will, succession and inheriting.
The topic tables allocation into the five books, which decreases/goes back to the Pandektenwissenschaft of the 19.Jahrhunderts, is subject to a remarkableAssymmetrie. While the general part, the law of contract and the thing right are separate by abstract legal distinctions, the books concerning the family right contain and vomit coherent social procedures, which exhibit for their part thing-legal and contractual elements.
before the entry into force of the civil law book prevailed in the area 1871 of the created German Reich right splintering, it applied and. A. Common right, general Landrecht (ALR), the code civil, right of Baden and Saxonian BGB.
The Kodifikationsstreit in such a way specified of 1814 between Anton Friedrich Justus Thibaut and Friedrich Carl von Savigny preceded the Kodifikationsbestrebungen. While the liberally adjusted Thibaut demanded a uniform Kodifikation of the civil right, around “civil traffic” (= trade) toosimplify and to the national unit to contribute, the conservative Savigny of a Kodifikation faced negatively. For such an achievement the jurisprudence of its time did not seem to it yet ripely. First the view Savignys kept the upper hand.
In the course of the time, particularly off1871, however the demands strengthened establishment of the German Reich after a civil law book. 1873 decided Reichstag and Bundesrat upon the request of the realm tag delegates Miquel and Lasker of the national liberal a party a change of the realm condition, which the realm legislative jurisdiction forthe entire civil law transferred (see lex Miquel Lasker). A Vorkommission made regarding the elaboration of a civil law book suggestions, which decreased/went back to a large extent to an appraisal of the professor for commercial law, Levin Goldschmidt, for the Upper House of Parliament. The 1. Commission, consisting of 9 judges andMinisterial officials and two professors, under it the Pandektist Bernhard Windscheid, one called up 1874 and put after detailed consultation 1888 the 1. Draft forwards. It oriented itself strongly at the principles of the common right as well as at the teachings Savignys and becamewhen antisocially, old-fashioned, in an un-German manner and with difficulty understandably criticizes. 1890 called up 2. Commission, to which also Anton Menger belonged, put 1895 to the 2. Draft forwards. This was transmitted with small changes by the Upper House of Parliament as “the third draft” 1896 Reichstag, throughand to 18 decided these with again easy changes. August announces.
The BGB stepped at the 1. January 1900 into force. From the introductory law to the civil law book (EGBGB), in that the temporary agreements were accompanied to up to then the right valid in Germanyand opening clauses for the legislation of the Federal States (today: Lands of the Federal Republic) are contained (so-called. National private law). The moreover international private law is codified in the EGBGB. In the future the respective temporary agreements became on changes of the civil law book (and. A. by the agreement contract with the GDR) into the introductory law trained.
idea world of the BGB
the idea world of the BGB stands in the tradition of the delivered Roman right (common right) and the nature-legal Kodifikationen 18. and 19. Century, which the overcomingständisch hierarchical order to overcome intended. The common right has in Germany in 19. Century by the Pandektenwissenschaft a strong lift receive. For the BGB the conception of liberty and legal equality of all persons participating in private law traffic is basic. These principlesfind in the private autonomy their expression. Accordingly the BGB gives to the right comrade as tool for the implementation of the private autonomy the legal transaction to the hand, is able its individual its legal relations in self-determination and direct responsibility to arrange can. Important developments of the private autonomyis the freedom of contract (§305 BGB a.F. /§311 I BGB n.F.) and the attesting liberty (§§1937 to 1941 BGB). Also the fortune order is essentially privatnützig out-arranged (§903 BGB). The function of the BGB for the economical enterprises of the rising was socio-politicalTo form middle class a suitable legal framework.
Contrary to the liberally coined/shaped law of contract, thing right and vomit followed oneself the family right to a large extent the traditional patriarchalischen traditions, particularly in the administration and nutzniessung of the ehefräulichen fortune by the married man(§1363 BGB a.F.), decision right of the married man in conjugal affairs (§1354 BGB a.F.) and the perception of the parental force by the father (§1627 BGB a.F.) struck down. On the other hand the BGB carried the obligating civil marriage introduced by the law on registration of births marriages and deaths of 1875their fundamental separating barness away.
Despite the prevailing liberals and individual courses of the BGB, a reconciliation between the interests of the nachständischen society of the industrialization and the political order of the empire took place. This takes place in the way from safeguarding clauses for the stateLegislative competence in the area of private law (see EGBGB).
contemporary criticism at the BGB
exemplary for the contemporary criticism at the BGB are the remarks Otto von Gierkes. By it expressed objecting in accordance with, is the BGB oftoo little German-legal ideas carried. The BGB represents Roman right doctrine with its actually barrierless rights, which are limited only by opposing rights third, a product. According to the German right tradition however no rights without obligations would have existed. The rangefrom rights cannot continue, when the reasonable use and the interest of the public require it. Beyond that contacts the BGB with its abstract conceptualness lawyers to speak on instead of to the people.
Also it was criticized that the BGBwith his formal equality of the right comrades of the economic and intellectual difference of the particulars do not become fair. The private autonomy as bare possibility of the economic and legal self implementation favours in the long run the fast, flexible, knowing and forces fortune-holding of the society. In contrast to thisconditions of the hired hand class would have into the §§611ff. BGB only a completely insufficient regulation experience, which are cut rather to services of free occupations.
in the first 14 years of its existence began iurisdiction and jurisprudence with the development of the dogma TIC of the BGB. The courts supplemented the written right approximately around Rechtsinstitut of the positive violation of contract, the right to in courts and exercised industrial concern or the preventing action to restrain interference against threatening law breakings.
Already in the empirethe wartime economy of the First World War made first changes at the BGB necessary - the obligation to contract and the dictated contract are examples of national steering of the economy, which contradicted central elements of the liberal origin BGB.
the Weimar Republic tookthese changes back. It was shown however that it was missing to the BGB at protection regulations economically weaker citizen in the renting and industrial law. In the industrial law already the tendency began those to the special law giving, today to a multiplicity of work laws in that Weimar timeand an unclear iurisdiction led. The iurisdiction inkorporierte also before the background of the inflation Rechtsinstitut of the omission of the implicit basis of contracts.
the national socialism changed first family and vomits. There the general clauses, like z.B. § 242 (“faithful and faith “), “idea gates” for a right dogma TIC in the sense of the National Socialist ideology represented, without extensive changes at the first three books of the BGB was done. However the LV realm government worked on a people law book, which thatstill the liberal equality and liberty thought obligated BGB to replace should.
crew powers substantial changes of the LV regime at the BGB withdrawal. The development of the BGB is starting from this time into west and East German a development toopartition.
development in the GDR
the GDR set the BGB gradually repealed, since it was not compatible with their ideology. Successively the family right became into a “family law book” (1966), adapted to the changed living conditions, the industrial law ina “work law book” (1966) the remaining parts in the “civil code” (1976) and the “contract law” (1982) transfers. The right was subordinated to a socialist economic system. The contract served the planned economy as instrument. With the economic and monetary union to the 1. July 1990 and thatGerman reunification|German reunification]] to the 3. October 1990 ended this special way. The BGB became with extensive temporary agreements for the area of the former GDR (kind. 230 - 237 EGBGB) again all-German right.
development of West Germany
with that 31.3.1953 becamethe family right of the BGB, as far as it offended against the equal rights of man and woman, ineffectively (kind I, kind. 3 GG). The legislator carried the law on property for that by the equal rights law from 1957 to the substantial part of calculation, by that on those todayvalid increase community was changed over and the decision right of the married man in conjugal questions was waived. The marriage right law of 1976 eliminated the legal example of the housewife marriage.
Very disputed was however the change law of divorce away from the indebtedness principle, to the Zerüttungsprinzip. ThatLaw for the legal status of not-conjugal children of 1969 eliminated the unequal treatment between conjugal and illegitimate children and followed thus the demand of kind V GG.
In the following years numerous consumer protection laws were issued outside of the BGB, so z. B.the entry door revocation law or the law for the regulation of the right of the general trading conditions (“AGB-law “), so that the clarity suffered and was pulled the character of the BGB as Gesamtkodifikation in.
development since 1990 in all-German country
1994by the care law the right of the guardianship was abolished over adults and replaced by the Pflegschaft. The last larger revision took place in the course of the law of contract modernization at the beginning of the yearly 2002 (with new proclamation of 2. January 2002 (BGBl. I S. 42)),by the among other things different guidelines of the European community were converted. With this cause many were taken up the mentioned Nebengesetze to the BGB. In addition became the positive contract or demand injury and different one by the science and practice (far) developed institutes for rightexpressly legally regulated. The entire right of the achievement disturbances as well as the rightright right were revised.
developing materials and minutes:
- Motives to the draft of a civil law book for the German Reich. Official expenditure. Bd. 1-5, Berlin/Leipzig 1888.
- Benno Mugdan: The gesammten materials to the civil law book for the German Reich, Berlin 1899.
- Refuge Heinrich Jakob, Werner thrust ore (Hrsg.): The consultation of the civil law book in systematic composition of the unpublished sources (Berlin/New York starting from 1978, severalBde.).
Discussions and literature at present the BGB emergence:
- George Maas: Bibliography of the civil right. Listing of single writings and essays over the right united in the civil law book for the German Reich. Bd. I. 1888-1898. Berlin 1899. Bd. II. 1899.Berlin 1900.
- Schmoeckel, Mathias; Back ore, Joachim; Carpenter, Reinhard (Hrsg.): Historical-critical comment on the BGB. Volume I. General part §§ 1-240, 2003. ISBN 3161479092
- Ulrich Eisenhardt: German historical jurisprudence. 3. Aufl. 1999, esp. S. 404-411 ISBN 3406453082
- Uwe Wesel: Nearly everything which right is: Law for non--lawyers. ISBN 3492239609
- Rolf knee by: Law and history: a contribution to existence and change of the civil law book. 1996, ISBN of 3789043516
- Bamberger/Roth (Hrsg.): Comment on the civil law book in 3Volumes.ISBN 3406485421
- Erman: Hand comment on the civil law book in 2 volumes. 11. Aufl. 2004. ISBN 3933188229
- Jauernig (Hrsg.): Civil law book. 11. Aufl. 2004. ISBN 3406518206
- Otto Palandt (Begr.): Civil law book. 65. Aufl. 2006. ISBN 3406538339
- Julius of Staudinger (Begr.): Comment on the civil law book with introductory law and Nebengesetzen. 13. Aufl. 1993 FF. ISBN 3805907842
the comparable Kodifikation in Austria is the general civil law book (ABGB). In Switzerland it is the civil code (ZGB) of 1907, which developed historically seen on the experiences of the German BGB, but when more modern and more clearly applies. Which concerns the time priority, it is surveyed frequent that the BGB for his part on the Swiss obligation right from 1881, that today formally a component of the ZGBis, followed. The BGB became among other things of Japan and Greece as model for the there civil law uses. Japan took over end 19. Century one of the draft versions of the BGB nearly invariably.
Web on the left of
- BGB of the Federal Department of Justice and Juris
- BGB search machine: Legal texts scan
- BGB duty to supply information regulation of the Federal Department of Justice and Juris
- civil law side of the Federal Department of Justice
- legal text with dejure.org
- BGB old (to 31.12.2001) with dejure.org
- on-line comment to the BGB
|please consider you also the reference to right topics!|