First of all, Fuchs takes exception to the position taken by the Imperial Court regarding the doctrine of "dom-mage moral" in the districts formerly under the French "Code Civil," a doctrine which, according to him, the French Court of Cassation had worked out with admirable sociological insight.52 These exceptions seem to be substantially well taken53 as seems to be admitted even by Duringer.54 As to the next case discussed,55 Fuchs maintains that the head of a household is entitled to damages for the negligent killing of members of the household who had been in the habit of turning over to him the whole or a part of their earnings, although they were not obliged to do so by law-as had been done in the case in question. It seems to me that in accordance with the general principles of liability of the Code56 the plaintiff here was entitled to damages, although the letter of the Code provision 57does not cover such a case. Otherwise he would be worse off than if some profitable domestic animal belonging to him had been killed. Only the specific provisions of the section58 relating to the duration of the duty of paying indemnity and similar things, could have no application. We cannot admit that the wording of the statute made the opposite decision necessary. It would really seem as if the court might have had the courage of giving a liberal construction to the statute, if they had taken into consideration the suggestion offered by Fuchs that otherwise a father, who through the assistance of his numerous sons and daughters was on the road to wealth, might have all of his children shot one by one, without being entitled to civil damages.59
52 "R&W" pp. 25 seq. 53 Cf. also "G" pp. 53, 54.
54 "Richter und Rechtsprechung," p. 17, note 2, Leipzig, Veit, 1909.
55 "R&W" p. 27, discussing a decision dated June 10, 1907, as printed in "JuristischeWochenblatt," 1907, p. 480, No. 2.
56 BGB Sec. 249.
57 BGB Sec. 844, par. 2.
58 BGB Sec. 844, par. 2.
In the next case60 criticized in the author's essay a married woman, living under the rule of joint administration of the estates, who sues with the consent of her husband, is ordered to prove that the subject-matter of the action relates to her, and not to her husband's, estate. For that purpose the cause is remanded to the court below. That whole matter might have been definitely settled by the observation of Fuchs61 as follows: "As the husband, being the head of the marital community, had consented to bringing the action, such legal subtleties were quite immaterial."62
Then comes a discussion63 of a decision64 in which it was held that the family of a man who had been drowned in an insufficiently guarded stream running through a village have no claim to damages,65 because the provision of the penal code was a protection only for the deceased himself but not for his family. This decision is justly excepted to,66 and the reason given for it, that the death of its head did not necessarily prove a pecuniary loss to the family, is also attacked with good arguments.
59 Having a deeply-rooted conviction that in the matter of the "dommage moral" the German courts have unfortunately shown themselves inferior to the French, and that in the second case mentioned above, under a proper interpretation of the statute, the father would have received damages for the wrongful killing of his child, Fucks, on page 28, allows himself to exclaim: "One is indeed tempted to call to arms, but not against creative but against eunuch-like administration of law." I am the last to fail in strong reproval of such a slip, but also the last to believe that an author should be anathemized because of this bitter outcry, which was caused by a not unjustifiable feeling that the manner in which justice is administered in Germany does in such cases fail to show a proper creative force ("the highest quality," "G" 187).- In "G" 63, 64, there is also a gross contempt of court deserving reproof.
60 RGZ 64, no. 81, p. 323.
61 "R&W" p. 31.
62 That is true notwithstanding Duringer's observations in "Recht," 1908, p. 264. Compare also "G" 44-46, where Duringer's telltale expression "What has sympathy to do with a court of review?" is properly animadverted upon. The author there says that the compass, of feeling for justice must be pointing in the wrong direction where such a question can be answered in the negative.
63 "R&W" pp. 32, 37.
64 RGZ 64, no. 85, p. 344.
As to the next case,67 it is shown68 in substantial although not formal agreement with the views of the Court, how the reason for that decision could have been stated very simply. The decision was to the effect that where a bailee, being entitled to deposit the thing bailed or the proceeds of its sale, under the provisions of the controlling sections,69 with the proper officer, sells the thing bailed at public auction, he may, instead of depositing the proceeds, pay it to the person entitled thereto, and in doing so satisfy any claim of his own as an offset.
The next question is whether a lessor is liable in damages, where the lessee has rescinded the lease for the reasons permitted by the Code.70 The affirmative answer in this case does not seem to me to be so completely justified as Fuchs assumes, in accordance with the Imperial Court overruling the "Kammergericht." Precisely from the sociological standpoint, is it not unjust to make the lessor liable for all damage to the lessee even where he is not at fault when the premises become uninhabitable? Is not the gravamen in such a case the negligence of the lessor, as suggested by another section?71 Yet the Imperial Court never touches upon this matter.
65 Under BGB Sec. 823, par. 2; cf. Penal Code Sec. 367, No. 12.
66 Comp. my observations in "Deutsche Richterzeitung," 1909, p. 100.
67 RGZ 64, no. 90, p. 366.
68 "R&W" pp. 40-46.
69 BGB Sec. Sec. 383,384.
70 RGZ 64, no. 93, p. 381; BGB Sec. 542; "R&W pp. 50-52.