In a case where a party has refused an oath which as put comprised several distinct subject-matters,79 there must be some way by which the court above may remedy the oversight through which the oath was refused entirely instead of regarding the objectionable subject-matters only.
79 RGZ 66, no. 50; "R&W" p. 78.
With reference to his next case,80 I agree with Fuchs when he says that practical considerations and equity require that the vendor of a defective article, in an action for damages, should have the burden of proof regarding any defenses he may have, so that the "legal deduction," on which the Imperial Court expressly relies, ought not to be decisive.
I now proceed to a consideration of the decisions criticized by Fuchs in another work.81
Touching the first case,82 I agree that it would be more correct to deny the right of claiming a reduction of the purchase price to the guarantor, where the vendee either cannot or will not demand such reduction. There is no logical necessity growing out of the concepts of rescission of a sale or demand for a reduction of price, for making a distinction in the relation of the principal debtor to the guarantor.
Referring to the next case,83 one feels disgusted at the doctrine that a man who has been declared the father of an illegitimate child is not allowed to interpose a defense84 in an action by the child through his guardian, for maintenance and support, where the mother had been subsequently convicted of perjury, but the man had failed to bring an action to set aside the judgment declaring him to be the father. In this connection we may call attention to the more correct view taken by the First Criminal Division, to which prior decision,85 however, the Sixth Civil Division makes no reference. "No matter how high one may rate the sacredness of a judgment, it must not be allowed to shield the wickedness of criminality."86
80 RGZ 67; "R&W" p. 82. 81 "G" ch. 2, pp. 27 seq. 82 RGZ 66, no. 80; "G" I. 27. 83 RGZ 67. no. 43; "G" p. 29. 84 Under BGB Sec. 826. 85 RG Str 34, 282, 283.
The decision next brought under consideration87 is more in harmony with the strict rules governing negotiable instruments, it seems to me, than the opposite views of Fuchs. It was possible for Adolf M. to bind himself personally. The fact that the note was intended to bind the firm known as Adolf M., of which Adolf M. personally was the attorney in fact, should have appeared on the instrument itself.
The distinction relating to signature by an attorney and by a mere amanuensis mechanically adding the subscription which Fuchs criticizes in his book88 is well founded in the statute.89 Even though in the latter case signature by an amanuensis were permissible, nothing would indeed remain of the requirement of "signature in his own hand," required by the section of the Code.90 Such distinctions, though at first glance they may surprise us, are not to be avoided in any body of law. *********