The internal technic of the German Civil Code is not apparent from any positive provision in the text as it has finally
4 [The Swiss Civil Code of 1907 has been translated into English by Robert P. Shick, for the Comparative Law Bureau of the American Bar Association (Boston Book Co., 1915).-Ed.] become law, nor is it set forth, "ex professo," in any official document. It can be learned only from an attentive study of the work, and for this purpose it is useful to compare the law with its first draft, and also first of all to determine the exact scope of the Code.
The German legislators of 1896 intended to supply, with certain intentional and limited reservations, a complete statutory system of positive private law. Undoubtedly, by striking out the second section of the original draft, they left room for the existence of a general customary law subsidiary to the new statute. According to the most widely accepted opinion, however, such customary law is recognized both when it derogates from the statute and when it supplements it, and the omission of that section amounts to nothing more than the tacit recognition of a social process which is inevitably going on, and which the legislator may at most render almost entirely superfluous by the completeness of his own work. On the other hand it seems certain that, while the provisions of section 1 of the first draft, regarding the use of analogy, have been held useless and even dangerous, it has nevertheless been the intention to base all further growth of German civil law on the interpretation of the new Code. Briefly, the authors of the "BiirgerlichesGesetzbuch" of 1896 have carefully avoided the attempt of the "Allgemeines Landrecht fur die Ko-niglich-Preussischen Staaten" of 1794, to cover all conceivable concrete cases by detailed specific provisions, but have striven to comprise in their general rules all the relations of private life giving occasion for legal regulation. Such, it seems, has been the main and most important principle of their technic. Secondly, they have tried, as appears especially from a minute comparison of the first draft with the law itself, with deliberate intent to exclude from their work all explanations of principles, conceptions, or theoretical constructions and all purely theoretical definitions, so as to confine themselves to strictly positive provisions in which all actual relations are comprised and subjected to the necessary rules. Finally, the means of accomplishing this double object has been the adoption of and faithful adherence to an ingeniously constructed body of formulas, turns of phrase, and specially adapted expressions. This constitutes properly the technic of this legislative work. Its principal features I intend to indicate in outline, while for the elucidation of detail and for the numerous illustrations or exemplifications I shall have to refer the reader to the most approved commentaries on the new Code.
1. Although the grammatical construction of the various provisions is not absolutely uniform, the German legislator of 1896 has taken care to produce the same legal consequences from the same given state of facts, directly or indirectly, sometimes by repeating the same provision and sometimes by simple references (the latter are not so frequent in the law as in the first draft but still quite numerous). Thus even his legal definitions are usually implied in the various clauses of a rule. The legislative text is built up according to rather constantly recurring forms without being absolutely stereotyped.
2. Different phrases and locutions, conceived so as to express the fundamental nature of different clauses in most cases very simply and unambiguously, correspond commonly if not invariably to the nature of the various clauses, whether imperative and absolute, or merely permissive, or simply declaring the legislative character of the provision like an enacting clause.
3. Although the burden of proof can usually be determined from the general form of a statute, on the principle that he who claims the benefit of a legal provision must show that its conditions have been fulfilled, the German Civil Code makes this matter which has such great practical importance still more clear by an ingenious combination of clauses which tends to show at a glance what the respective position of the parties to an issue will be in this respect.
4. The German Civil Code represents a really novel attempt at introducing a fixed and rigorous terminology appropriate to the modern demand for extreme precision in legal ideas. Not only does it attribute to certain terms a clear and varying meaning by actual legal definitions wherever that appears indispensable; but it appears that the greater part of the legal terms used, even where the words are taken from everyday speech, are given a technical meaning and are so to speak marked officially as technical terms. Nay, it would not be too bold to say that a technical sense belongs to all the terms, or very little short of that, used in the "Burger-liches Gesetzbuch." A lawyer who has made a particular study of this very original feature of the German Civil Code, Martin Wolff, has asserted as an actual fact5 that this code "avoids with great care either the use of several words for the same thing, or one and the same word for different things." Thus the German Civil Code shows to us a very studied attempt to create a special statutory language, with the purpose in view of guaranteeing to practical business life the greatest certainty of the law that can possibly be expected of any codification.
If we add to the above that the German Code also revises the rules regarding certain technical instrumentalities of the law, such as presumptions and fictions, for which in addition it employs appropriate terms, we shall have supplied a summary but sufficient outline of the legislative technic it originated.
5 In Goldschmidfs "Zeitschrift." vol. 51. p. 599.
A particularly interesting feature of this form of technic is that there is no tangible trace left in the compact mass of the published preliminary drafts and other documents relating to the Code, to show that there was any deliberate discussion regarding this matter, although we may be sure that it was not hit upon unconsciously or by accident. We may well assume that the perfectly homogeneous form of the Code was made possible by the method adopted for doing the work. This included both individual preparation and joint discussion, and this plan was carried out most judiciously and systematically. There seems to be good reason to assume that the most characteristic feature of the work, to wit, the adoption and consistent employment of a terminology previously agreed upon, is due to the labors of the editorial committees forming part of the first and second Code Commissions. These bodies, which may be compared to the legislative section of the French Council of State of 1800-04, worked hand in hand with the Commissions having charge of the entire task and were in a position to obtain for the final text of the "Bur-gerliches Gesetzbuch" that formal unity, syntactic rigor, and precision of language which are so characteristic of this code.
Finally we should state that the German Civil Code shows an endeavor which has not remained without fortunate results, to get rid of some of the narrowly theoretical character of the first draft, and has become more alive, practical, and more broadly corresponding to social needs. At the same time the attempt to include in its provisions all the legal relations of private life fully and with certainty has by no means been given up. Sometimes, to be sure, and even quite frequently, the German legislator leaves to the judge a wide discretion. This, however, must be a well-informed discretion, guided by ingeniously devised rules which themselves may be said to constitute another novel feature of legislative technic. On the whole, the "BurgerlichesGesetz-buch" of 1896 appears to us as a code of the kind that delights in having a rule for everything, with a tendency towards generalizations or even abstractions, with great uniformity of style, and an almost monotonously rigorous terminology. Its technical form as a whole, considered apart from the aid it gives to interpretation, impresses one as methodical, unyielding, and consistently logical. It may occasionally make one feel a little uncomfortable, but cannot but appeal strongly to the intellect.