It is shown91 how, by means of the "constructive and dialectical" method, actually two views diametrically opposed to each other may be "proven." In this case a creditor accepted the substitution of the purchaser of mortgaged property as a personal debtor, although the reference to this transaction had not been entered on the record of conveyances, as required by the section of the Code.92
86 "G" p. 30.
87 See "G" p. 33, citing from JW 1908, p. 280.
88 "G" pp. 41, 42.
89 Where a writing is required, see RGZ 50, pp. 51, 81, 387.
90 BGB Sec. 126, par. 1. .
91 "G" pp. 46, 47; ct. also p. 44.
92 BGB Sec. 416, par. 2.
There are two contradictory decisions of the Imperial Supreme Court.93 Nobody is likely to deny that the second of these decisions is obviously correct and might easily be justified in two simple, easily understood sentences.
I agree again, however, with Fuchs in his criticism of another decision cited.94 I cannot believe it to be good law when the will of the paralytic widow Schmidt is declared invalid because the judge before whom it was made had not required her expressly to state that she could no longer write, as I have already said. I also am of the opinion that this is a most extraordinary exaggeration of the blind respect for forms, and shall reiterate, notwithstanding adverse criticism, that a decision like this impresses one as inhuman. It seems, by the way, as if the decision had met with universal dissatisfaction.95
On the other hand I am not on the side of Fuchs in his animadversions on two other Imperial Supreme Court96 cases. In the former case I cannot believe it to be good law to extend the sociological reasons which make the maxim that "purchase destroys hire" inapplicable to the rent of a dwelling, also to the case of leasing hunting rights, which is a contract of a very different nature. In the other case I am of the opinion that a counter-complaint in a separate action is not admissible at all in cases where damages are sought for execution on a judgment which was afterwards set aside, when the section97 of the Code of Civil Procedure gives a special remedy in such cases. For this reason the point that the counter-complaint involved a larger demand could not be relevant.
93 Gruchot's Beitrage 49, p. 354; RGZ 63, p. 42.
94 "G" p. 277; RGZ 68, No. 79.
95 Comp. Danz, in DJZ 1909, pp. 100, 101; Hellwig, ibid. p. 426.
95 JW 1909, nos. 12, and 22; "G" 304, 295.
97 717, par. 2.
It would seem that anybody who has painfully worked himself through the artificial reasonings in the decisions of the intermediate and supreme courts, and then finds in the appendix to Fuchs' book the solutions of these problems in the spirit of sociology,98 would become imbued with the enlivening hope that at last common sense, which has so often knocked at the gates in vain,99 will enter triumphantly into the temple of Themis.
Regarding what Fuchs calls a "decision professorial and assessorial" reprinted as an appendix to his book100 we shall have to admit frankly that in a day not very remote it will be fit for exhibition in a museum of legal curiosities as a fossil relic of a method long since supplanted.101
The "scientific" decision of the Ober-Landesgericht [District Court of Appeals] I consider erroneous, as Fuchs also regards it.102 If anybody offers a thing for sale on the express condition of cash payment, no set of circumstances can justify a judgment forcing him or his successor in law to part with the goods without such cash payment. It is impossible that a person to whom such a thing should happen should not feel that he was being robbed under the forms of law, no matter what learned arguments may support such a decision.103
98 For instance, page 308, referring to JW p. 55, par. 25, and other places. I should like to call special attention to the last paragraph but one on page 261, where is stated concisely and well: If a husband is capable of purchasing and paying for land to become part of the community property, he must also be capable of giving a mortgage as security for the purchase price.
99 Common sense in matters of law and true subjective sense of justice are synonymous terms.
100 Appendix II, p. 266.
101 It should be observed, however, that this judgment was reversed by the Appellate Court at Karlsruhe.
102 See "G", Appendix II, p. 271; "G" p. 321. 103 "G" p. 321.
In the present case the facts would entirely justify the assumption that the delivery should take place on payment of the balance still due, and that before this was done there was to be no transfer of title. Such an assumption would have been in harmony with the actual circumstances and would have prevented the inequitable result of the action.