As far as the outward form of decisions by the Imperial Supreme Court is concerned, the suggestion has often been made that long-winded periods and clumsy expressions ought to be avoided. Even recently, however, one may find in a Supreme Court case 13 a single sentence containing 121 words. To insert into a decision long citations does lighten the labors of future legal authors, but strictly such quotations are not a part of the business of the court, which should keep in mind first of all the convenience of the litigants. The dignity of courts requires that their opinions, which in effect are the commands of the State, shall be pronounced with decision and not bear on their face the vestiges of painful mental labor. Before what the court has to say is given publicity, all attacks of the "maladie de doute" must have been cured. To show to the parties that the court had to struggle with doubts had better be avoided. In some cases it may be very profitable to dig into the history of the origin of the law, but ordinarily that sort of toil need not be paraded in public.
11 "Schreibjustiz und Richterkonigtum"; "Recht und Wahrheit in unserer heutigen Justiz." See also: "Holdheim's Monatsschrift," 1908, p. 161 et seq., 1909, p. 29 (now inserted in the work "Gemeinschadlich-keit der konstruktiven Jurisprudenz," (vide infra); "Wurttembergische Zeitschrift fur Recht und Verwaltung," 1909, p. 1 et seq.
12 It seems at bottom self-evident that criticisms of this kind must be directed principally against the highest court in Germany. As things are, the decisions in the lower courts are to a great extent dependent on those of the Imperial Court. Nobody will deny, therefore, that consistent errors, if they can be proven in the decisions of the Imperial Supreme Court, will also be found in those of the lower courts.
In the field of private law a large part of the controversies have no particular scientific interest. The full quorum of the Imperial Supreme Court uses ten printed pages to discuss the question 14 whether an action abates when a party dies after a judgment in appeal has been served upon him, but before he has moved for a revision and the party is still represented by the attorney of record in the appellate court. That might well have been decided and the reasons stated in a few words. In a case like this, as in many other cases relating to practice, the decisive thing is not some scientific reason but the convenience of daily life. Arguments based on scientific grounds but losing sight of this practical consideration will have to be rejected because they are not applicable and therefore incorrect. For instance,15
13 RGZ 65, p. 318. 14 RGZ 68, pp. 247-257.
15 RGZ 16, p. 395. The two cases next following have not been discussed by Fuchs.
the proposition maintained by the Supreme Court in another decision, according to which the possession of a document containing material evidence can be proven only by producing the document, and not by witnesses, seems to me to have no practical value, although the commentaries go on upholding it. Why should I not be permitted to prove by witnesses that my opponent is not telling the truth when he swears that he does not have the document; and after that has been established, why should not a witness be heard under oath to tell what the document contained? Further, it might be interesting to know whether any court ever required a party who at the first oral hearing refused to be sworn, to take the oath afterward, merely in order that such party, who according to his own declaration cannot take the oath, may have an opportunity to make up his mind whether he really cannot take that oath?16 And what, finally, is the real, practical substance of that eminently "scientific" question, the "contingent counterclaim," except the recognition of the utter absurdity of deciding an action in such a manner as to make a new lawsuit the unavoidable consequence?17
The entire subject of service of papers, as contained in the Code of Civil Procedure, is distinguished from the corresponding provisions everywhere else (as, for instance, in the acts regarding the industrial and commercial courts) by absurdities and senseless formalism, causing the loss of many a good case at the expense of parties. Decisions on such points have no real scientific interest; they are a treadmill toil which has been imposed on the courts by defective legislation.
16 According to Gaupp-Stein, note I, 2, to sect. 464, the provisions of sect. 464, par. 2, of the Civil Code apply only where the court has imposed the oath upon the party.
17 This agrees with Gaupp-Stein, note 2, to Sec. 300 ZPO.